State Roads Commission v. Adams

• Decision Date: 21 April 1965
• Docket Number: No. 223,223
• Citation: 238 Md. 371,209 A.2d 247
• Parties: STATE ROADS COMMISSION of Maryland v. Edwin O. ADAMS, Jr., et ux.
• Court: Maryland Court of Appeals

Page 371

238 Md. 371

209 A.2d 247

STATE ROADS COMMISSION of Maryland v.Edwin O. ADAMS, Jr., et ux.

No. 223.

Court of Appeals of Maryland.

April 21, 1965.

J. Thomas Nissel and Herbert L. Cohen, Sp. Attys., Baltimore (Thomas B. Finan, Atty. Gen., and Joseph D. Buscher, Sp. Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Cornelius F. Sybert, Jr., Ellicott City, and Walter R. Tabler, Baltimore, for appellees.

Before HAMMOND, HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

BARNES, Judge.

The State Roads Commission, appellant, filed a petition in the Circuit Court for Howard County on August 8th, 1963 seeking to condemn for highway purposes 12.65 acres of appellees' land, in fee simple, together with certain minor appurtenant easements.From a judgment entered upon the inquisition of the jury assessing appellees' damages at $56,707, the Commission appeals to this Court.¹Two questions are presented for our determination; as stated by the appellant, they are: 1.Was the lower court correct in permitting the testimony of the appellees' appraiser to be considered by the jury?2.'Should the verdict of the jury be set aside inasmuch as it is quite apparent that it did not follow the court's instructions as stated--'If you should find that the highest and best use for which the land is adapted, is other or different than for farming purposes, you should not consider severance or consequential damages resulting to the remaining land as a farm unit'?'Although these two issues are but different sides of the same coin, as will appear later, we will consider them separately.

(i)

The subject property consists of a tract of land in the Fifth Election District of Howard County, consisting of approximately 196 acres, which has been in the family of the appellee, Edwin O. Adams, for about one hundred years, and which has been and, at the institution of condemnation proceedings, was being operated exclusively as a dairy farm.The part of the tract taken for the construction of a new Maryland Route 32 is 12.65 acres in area, 300 feet in width, and approximately 1780 feet in length.The effect of the taking was to bisect defendants' entire property: on the northerly side of the part taken is a severed area of 122.71 acres on which there are no improvements; on the southerly side is an area of 60.64 acres on which stand the dwelling a large dairy barn, a milking parlor, and other normal farm improvements.The economic impact of this severance upon the continued use of the remaining Adams property as a dairy farm, is considerable.The testimony shows that the new Maryland Route 32 is a denied-access highway, and that merely getting from the southerly side to the northerly side of the farm (formerly accomplished directly) now necessitates the use of at least five different roads and involves a round trip of approximately 8 miles.Consequently, since the farm improvements are all located on the south side, the acreage on the north side is now nearly useless as supportive property for the dairy farm operations.The large herd of cows has had to be kept on the southerly 60.64 acres, and a reduction of the size of the total herd seems inevitable; furthermore, the devotion of the south part to grazing of cattle has deprived Adams of its use for raising crops.Finally, it appears that the bisection of the subject property deprives appellees of virtually the entire natural water supply of the farm.There is in this case no dispute as to the necessity of taking, or as the date upon which the value of the property is to be determined.²

In the instant case a total of three estimates of damages were before the jury for its consideration.The Commission produced William B. Stromberg, a real estate broker and appraiser of 25 years' experience.The appellees called William S. Hanna, an appraiser also of many years' experience (whose qualifications were not questioned), and Edwin O. Adams himself.All three expressed the measure of defendants' damages as the difference between the fair market value of the whole property immediately before the taking and its fair market value immediately after the taking, as was proper;Code (1964, Cum.Supp.), Art. 33A, § 5(b)and§ 6;Pumphrey v. State Roads Commission, 175 Md. 498, 2 A.2d 668(1938).Their values were:

Before After Difference

-------- ----------- -----------

Stromberg $104,700 $ 72,187.50 $ 32,512.50

Hanna 180,710 111,511 69,199

Adams 201,800 98,766 103,034

Without going into laborious detail, it is sufficient for the purposes of this case to say that the single most important factor in measuring defendants' damages was not the fair market value of the 12.65 acres taken in fee simple, but was rather the consequential damage to the severed 122.71 acres to the north.All three witnesses agreed that the value of this area had been drastically reduced, and that the damage was at least 50% of its fair market value prior to the taking.That the consequential damages to the remainder of a tract, where there has been a partial taking, are properly considered, seems settled by the new condemnation code ³--Article 33A, Section 5(b), Code (1964 Cum.Supp.), as amended.That section provides:

'(b) Where part of tract taken.--The damages to be awarded where part of a tract of land is taken shall be the fair market value (as defined is § 6) of such part taken, but not less than the actual value of the part taken plus the severance or resulting damages, if any, to the remainder of the tract by reason of the taking and of the future use by the plaintiff of the part taken.Such severance of resulting damages are to be diminished to the extent of the value of the special (particular) benefits to the remainder arising from the plaintiff's future use of the part taken.'

This section effectively restated codified the existing case law.SeeBaker and Altfeld, Maryland's New Condemnation Code, 23 Md.L.Rev. 309, 316(1963).The variance among the three estimates of ultimate damages can be attributed mainly to the disparity in valuing the 'raw' land initially.Stromberg valued the land at a price of $400 per acre; Hanna valued it at $700 per acre; Adams, at $800 per acre.

Mr. Adams was not questioned on direct examination as to the bases on which he concluded that his land was worth $800 per acre; he was not cross-examined at all.By contrast, Mr. Hanna was specifically requested, both on direct examination (seeHance v. State Roads Commission, 221 Md. 164, 156 A.2d 644(1959)) and on cross-examination, to state his reasons for valuing the subject property at $700 per acre.He stated that, in formulating his opinion as to value, he considered the sales prices paid for certain properties similar in locality and character to the Adams property.The sales which he considered were:

1) A sale from Harwood Owings to John Settle, of 87.7 acres of unimproved property, in 1961, at $700 per acre.

2) A sale from William Camby to Contee Sand & Gravel Company, of 128 acres of unimproved land, in 1963, at $801 per acre.

3) A sale from Kenneth Hobbs to Serenity Acres, Inc. of 155 acres of improved land, in 1963, at $774 per acre.

4) A sale from Meyer to Howard Research & Development Corporation, of 280.3 acres of land improved by 'a few outbuildings,' in 1963, at $1173 per acre with such improvements, at $1100 per acre without them.

Sale #1 was testified to without objection; sale #2 came in over objection, but the objection appears to be on an unrelated ground (remoteness of location), was apparently abandoned below and is not pressed here.Sales #3 and #4 are the real bone of contention; testimony with respect to these sales was admitted only over the strenuous protests of the appellant.At the close of Mr. Hanna's testimony appellant moved to strike his entire testimony, but the court denied its motion.These rulings on the appellant's objections and on its motion are the principal grounds for error assigned here.The Commission asserts that Howard Research and Development Corporation is a corporation which has been seeking to acquire, and now has acquired, 14,000 acres of contiguous land in Howard County for development as a residential subdivision; that this corporation does not possess the power of eminent domain; that the exigencies of assembling the parcels of land needed to complete this tract are such as to make the corporation a 'captive buyer' willing to pay prices which are 'higher than in normal market transactions'; and that no sale made to this corporation 'can be considered as a comparable sale for the purposes of valuing the subject property in this case,' as a matter of law.

In Maryland it is well settled that evidence of the price for which similar property has been sold in the vicinity may legitimately be used in support of, and as background for, the opinion of an expert testifying as to the value of the property taken in condemnation proceedings.Williams v. New York, P. & N. R. Co., 153 Md. 102, 108, 137 A. 506(1927);Patterson v. Mayor & City Council of Baltimore, 127 Md. 233, 241, 96 A. 458(1915).There is a conflict of authority nationally upon the question of whether the price paid at voluntary sales of land similar to that taken is admissible as independent evidence of the value of the land taken.SeeAnnotation, 85 A.L.R.2d 110(1962), 'Admissibility on issue of value of real property of evidence of sale price of other real property.'We adhere to the 'Massachusetts' or 'majority' view that evidence of such sales is admissible as primary evidence of the value of the property taken, or to support an expert witness's opinion as to such value, or both.Hance v. State Roads Commission, supra;Taylor v. State Roads Commission, 224 Md. 92, 167 A.2d 127(1961); see 5 Nichols, Eminent Domain (3rd ed.), Section 21.3.In those states which adhere to the Massachusetts view the question frequently arises as to whether or not the conditions of other real property together...