State Road Commission v. Bowling

• Decision Date: 04 March 1969
• Docket Number: No. 12759,12759
• Citation: 152 W.Va. 688,166 S.E.2d 119
• Court: West Virginia Supreme Court
• Parties: The STATE ROAD COMMISSION of West Virginia, a Corporation v. J. Otis BOWLING and Idell Bowling.

Page 119

166 S.E.2d 119

152 W.Va. 688

The STATE ROAD COMMISSION of West Virginia, a Corporation v. J. Otis BOWLING and Idell Bowling.

No. 12759.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 28, 1969.

Decided March 4, 1969.

Syllabus by the Court

1. As a general rule, no party may assign as error the giving of an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly as to the instruction the matter to which he objects and the grounds of his objection; and ordinarily only grounds thus assigned in the trial court will be considered on appeal of the case to this Court.

2. 'The error of a lower court must be prejudicial to the complaining party in order to call for a reversal upon appeal.' Point 2 Syllabus, Merchants' National Bank of Point Pleasant v. Ralphsnyder, 113 W.Va. 480 (169 S.E. 89).

3. 'Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, though one of said instructions may have been susceptible of a doubtful construction while standing alone.' Point 4 Syllabus, State v. Kincaid, 104 W.Va. 396 (140 S.E. 338).

4. A view by a jury is for the purpose of informing the jurors upon any pertinent inquiry being made in the trial of the case and things which they observe upon such view, so far as they are pertinent to show anything proper to be proved are to be considered by them the same as any other evidence introduced in the case.

5. '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 (132 S.E. 380).

6. '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.' Point 5 Syllabus, State Road Commission of West Virginia v. Ferguson, 148 W.Va. 742 (137 S.E.2d 206).

7. 'In condemnation proceedings courts will rarely set aside verdicts on the ground that the award of compensation for the land taken and damages assessed for injury to the residue is insufficient or is too great, where there is a sharp conflict in the evidence as to the amount of compensation, and damage, if any, and the verdict is founded on any reasonable view of the conflicting evidence strengthened by the jury's view of the property as affected by the public improvement.' Point 1 Syllabus, County Court of Mingo County v. Chattaroy Coal Company, 105 W.Va. 321 (142 S.E. 430).

8. 'The action of the trial court in setting aside a verdict for the plaintiff and awarding the defendant a new trial will be reversed by this Court where it appears that the case, as a whole, was fairly tried and no error prejudicial to the defendant was committed therein.' Point 7 Syllabus, Earl T. Browder, Inc. v. County Court of Webster County, 145 W.Va. 696 (116 S.E.2d 867).

9. 'Where the trial court improperly sets aside a verdict of a jury, such verdict will be reinstated by this Court and judgment rendered thereon.' Point 4 Syllabus, Bronson v. Riffe, 148 W.Va. 362 (135 S.E.2d 244).

W. Robert Carr, David W. Knight, Princeton, for plaintiffs in error.

Kwass, Stone & Blue, Fred O. Blue, Bluefield, for defendants in error.

CALHOUN, Judge:

This case, on appeal from the Circuit Court of Mercer County, involves an eminent domain proceeding instituted in that court by The State Road Commission of West Virginia against J. Otis Bowling and Idell Bowling, husband and wife, to acquire for public highway construction purposes a portion of a tract of real estate owned by J. Otis Bowling subject to the inchoate dower rights of his wife. From the action of the trial court in setting aside a jury verdict in the sum of.$19,000 and in awarding the defendants a new trial, the state road commission has been awarded a writ of error.

The trial court set aside the jury verdict and awarded the defendants a new trial because of its opinion that it was error for the court to have refused to permit the defendants to introduce certain evidence which would have tended to prove that the land taken had a fair market value based upon or enhanced by its susceptibility for a subdivision development for residential purposes. The condemner contends that the trial court erred in this respect.

Counsel for the defendants contend that the trial court properly set aside the verdict and awarded a new trial for the reason assigned by it for doing so. In conformity with Rule XI of the rules of this Court, as construed in cases including Payne v. Kinder, 147 W.Va. 352, 127 S.E.2d 726, counsel for the defendants, by counter-assignment or cross-assignment of error, urge that the trial court acted properly in setting aside the verdict and in awarding a new trial for two additional reasons: first, that the trial court committed reversible error in giving State Road Instruction No. 1, as amended; and second, in refusing to hold that the amount of the verdict is inadequate.

The land acquired for highway construction purposes in this case consisted of 135.6 acres with a dwelling and other improvements thereon which was a part of a farm containing 444.7 acres acquired by J. Otis Bowling in 1930. By an order entered on June 30, 1966, the trial court granted permission to the condemner to enter upon and to appropriate the tract of 135.6 acres for public purposes. Commissioners duly appointed by the court went upon the premises and, by a report dated and filed on February 9, 1967, made an award of $24,750 to the defendants. Both sides excepted to the report of the commissioners and demanded a jury trial.

The jury trial was held in the circuit court on July 5 and 6, 1967. On the first day of the trial, the jury, accompanied by counsel, the court reporter, J. Otis Bowling, the landowner, and Elwood Booth, an engineer for the state road commission, were transported by bus to the Bowling farm to permit the jury to take a view of the premises. Before the jury was taken to the premises, the trial judge called to the attention of the jury the fact that the land taken had been changed in various respects, including the removal of the dwelling, certain outbuildings and shrubbery, since the original entry by the condemner. These changes were clarified in greater detail during the trial by the testimony and by introduction in evidence of various color photographs of the premises which were taken before the construction was commenced. On motion of the defendants, the jury verdict in the sum of.$19,000 was set aside and a new trial was awarded by the trial court as previously stated in this opinion.

In the early portion of the testimony of defendant J. Otis Bowling, he was asked by his counsel to identify a map or plat, made at some unspecified time prior to 1950, by which a certain part of the land in question was 'laid off in lots.' Counsel requested that this map or plat be 'received as Defendants' Exhibit One.' Thereupon the court stated: 'It may be so identified.' The witness testified that thereafter, by a deed dated October 11, 1950, he sold and conveyed two lots to Chesley J. Higgins and his wife. The court refused to permit the deed of conveyance to be admitted in evidence but permitted it to be filed and marked as an exhibit.

The deed conveyed two contiguous lots which were described together by metes and bounds as a single parcel of land. The record does not disclose what use, if any, was thereafter made of the two lots by the purchasers. We are unable to find from the record that counsel for the defendants stated the reason for the introduction of the deed and the map or plat in evidence, or that counsel for the defendants were prepared to prove by the witness that the land had a peculiar or enhanced value for subdivision and development for residential purposes. The record fails to disclose what the nature of the testimony of J. Otis Bowling would have been if he had been asked to give his views or opinion in relation to that subject.

K. B. Thomas, a witness for the defendants, was asked the following question and made the following rather gratuitous, unresponsive and confusing answer: 'Q. Did you attempt to segregate it into pasture, crop, or woodland? A. No. There is another method you can value it, then. He had fourteen lots facing on the highway. You gave them five hundred dollars apiece.' Counsel for the condemner thereupon stated: 'I object to testimony of this sort, How much value per lot.' (Italics supplied.) The objection was sustained and the trial judge announced that he would explain later the reasons for his ruling. In subsequently stating the reasons for his ruling, the trial judge explained that the land in question had not lost its identity as a farm, that the map made prior to 1950 'would involve plans and hopes for the future, and this is said to be conjectural and speculative and not admissible * * *.' As the basis for that ruling the court referred to and relied upon 4 Nichols, Eminent Domain, (3rd ed.), Section 12.314, page 140; Strouds Creek and Muddlety Railroad Company v. Herold, 131 W.Va. 45, 45 S.E.2d 513; and Monongahela West Penn Public Service Company v. Monongahela Development Company, 101 W.Va. 165, 132 S.E. 380. A more recent case to the same effect is State Road Commission of West Virginia v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206. We are of the opinion that the decisions of this Court listed immediately above fully sustain the ruling of the trial court.

The record fails to disclose that K. B. Thomas believed that the Bowling land had any peculiar or enhanced value for home construction purposes. Quite the contrary appears...