State Roads Commission v. Berry, 49

• Decision Date: 06 December 1955
• Docket Number: No. 49,49
• Citation: 118 A.2d 649,208 Md. 461
• Parties: STATE ROADS COMMISSION of Maryland v. Frederick J. BERRY and Grace A. Berry, his wife, and the National Bank of Cockeysville, mortgagee.
• Court: Maryland Court of Appeals

Page 461

208 Md. 461

118 A.2d 649

STATE ROADS COMMISSION of Maryland v. Frederick J. BERRY and Grace A. Berry, his wife, and the National Bank of Cockeysville, mortgagee.

No. 49.

Court of Appeals of Maryland.

Dec. 6, 1955.

Henry L. Rogers, Sp. Atty., Baltimore, and John W. Hessian, Jr., Sp. Atty., Towson (C. Ferdinand Sybert, Atty. Gen. and Joseph D. Buscher, Sp. Asst. Atty. Gen., on the brief), for appellant.

W. Lee Harrison, Towson (Smith & Harrison, Towson, on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

These condemnation proceedings were instituted by the State Roads Commission in the Circuit Court for Baltimore County to acquire for the Baltimore-Harrisburg Expressway a portion of the dairy farm owned by Frederick J. Berry and Grace A. Berry, his wife, near Hereford. Code 1951, art. 33A, secs. 1-26.

Prior to the condemnation, the farm contained about 120 acres. About 75 acres thereof consisted of hillsides, ravines, and woodland, and only about 45 acres were tillable. A stream running through the farm, known as Piney Run, was a valuable asset for the watering of cattle. The Commission entered into negotiations with the owners with the view of purchasing a portion of the property; but when it became evident that the Commission and the property owners would not be able to reach an agreement on the value of the portion desired for the highway, the Commission filed a condemnation petition against the owners and the National Bank of Cockeysville, mortgagee of the property. The Commission also deposited with the Clerk of the Circuit Court a check for $3,030, which it alleged to be the fair value of the part of the property taken.

The Commission condemned more than 13 acres in fee simple. It also acquired an easement in more than one acre so as to be able to make such stream changes and facilities as it may consider necessary. It was testified that the owners have also lost access to an area of about four acres west of the new highway.

Prior to the condemnation, Piney Run entered the farm from the west, curved to the south, and ran through the farm for more than 900 feet to the south boundary line. The area taken by the Commission in fee simple took nearly all of the bed of the stream on the farm. At the time of the trial the new highway had been brought to rough grade, and there was a wire fence around the easement area. The stream had been diverted from an easterly direction by a concrete culvert and discharged into a deep channel, which had been dug in a southerly direction parallel to the area condemned in fee simple.

Defendants had been living on the farm for about ten years, and had supported themselves and their seven children by dairy farming. They owned 25 Holstein milk cows and a number of heifers. Their daily shipment of milk averaged over 70 gallons. It was uncontradicted that the loss of nearly half of their tillable land made it impossible to operate their farm profitably any longer. Defendants asserted that the remaining acreage is insufficient to produce a sufficient quantity of grain and dairy feed. They also stated that the diversion of the stream deprives them of the advantage they had of watering the cattle in the stream. They found it necessary even before the trial to dispose of half of their herd.

Defendants produced three witnesses, William R. Whittingham, W. D. Akehurst, and Edwin H. Nicholson, who testified as experts as to the value of the farm before the condemnation and after it.

Whittingham, who studied animal husbandry and dairying at Cornell University and for many years was a dairy farmer in Baltimore County and an employee of the Maryland Cooperative Milk Producers Association, estimated that the farm was worth $42,000 prior to the condemnation, when there was enough land to support 25 cows; but that now, when it will support only 13 cows, it is worth between $12,000 and $14,000.

Akehurst, who also took the course in animal husbandry and dairying at Cornell and had operated a dairy farm for many years and served as a director of two banks and an insurance company, appraised the farm at between $43,000 and $45,000 before condemnation and between $10,000 and $12,000 after condemnation.

Nicholson, a resident of Sparks, who has been a real estate broker for more than 50 years and operates a real estate agency in Baltimore specializing in farms, appraised the farm at $40,000 prior to condemnation and at $12,000 to $15,000 after condemnation. In explaining why he thought the damage from the condemnation would be at least $25,000, he testified as follows:

'Mountain goats would be all right on it. You can't run a tractor up those hills. And in the back is woods. * * * The only part left, right-hand side as you come in the road, and that is pretty good ground right in there. But as a dairy farm * * * a dairy man wouldn't buy it. If a city man went in to buy it, he positively would not go in that road * * * because that road is about 7/10 of a mile long. * * * In the wintertime a man going to work in the city would have to use a tractor to get out. * * * A city man is not going to a place like that. I don't know what you are going to use it for, unless chickens or something like that.'

The Commission produced one appraiser, Mac Gardiner, who had been selling building lots on the Eastern Shore. He appraised the farm at $39,925 before condemnation, and at $34,589 after condemnation. However, when he was asked whether he knew anything about dairy farms, he answered: 'Very little. * * * I am not a dairy farmer. I am a real estate appraiser and I think I am qualified to determine a dairy farm from a dirt farm, to that extent; that is the extent of my knowledge of dairy farms.'

On May 23, 1955, the jury found the damages from the condemnation to be $24,000. On June 3 the judgment was entered upon the jury's inquisition. The Commission then appealed here from the judgment.

One of the Commission's complaints was that...