State v. Rascoe

• Decision Date: 04 March 1944
• Parties: STATE v. RASCOE et al.
• Court: Tennessee Supreme Court

178 S.W.2d 392

181 Tenn. 43

STATE v. RASCOE et al.

Supreme Court of Tennessee.

March 4, 1944

Error to Circuit Court, Rutherford County; T. L. Coleman, Judge.

Suit by the State against Emma C. Davis Rascoe and husband to condemn land to be leased to the federal government for an air base. Judgment awarding damages was affirmed by the Court of Appeals and the State brings certiorari.

Affirmed.

Roy H. Beeler, Atty. Gen., and John Heiskell and Ernest F. Smith, Asst. Attys. Gen., for the State.

G. S Ridley, of Murfreesboro, for defendants in error.

GREEN Chief Justice.

This is a suit to condemn land under sections 3109 et seq. of the Code by authority of Chapter 164 of the Acts of 1941 to be leased to the Federal Government for an air base. A jury of view assessed the total damage at $6,746.27. On appeal to the circuit court a verdict for $5,700 actual damages and $12,000 incidental damages was returned and approved. This judgment was affirmed by the Court of Appeals and the State filed a petition for certiorari, which was granted.

The State seeks reversal of the judgments of the lower courts on four grounds as follows:

1. Because the State was required to introduce its evidence in chief as to the value of the land taken first, although the right of the State to condemn was not questioned.

2. Because the court allowed a number of witnesses to express their opinions as to the value of the land and as to incidental damages without such witnesses having properly qualified.

3. Because the court erred in permitting proof of damages that had actually occurred at the time of the trial, the trial having occurred some months after the land was taken.

4. Because the incidental damages found were excessive in amount.

We shall consider these objections in the reverse order. The amount of land actually taken was 44.35 acres.

Mrs Rascoe was the owner of a fine farm of 378 acres located about two and one-half or three miles from Smyrna, Tennessee. Upwards of 3,000 acres were acquired by the State in that neighborhood for use by the Government as an air base, 44.35 acres of Mrs. Rascoe's land being taken as aforesaid.

This farm had been in Mrs. Rascoe's family for more than a hundred years, On it were a two-story colonial residence three barns, and other improvements. The land is described as fertile, well fenced, and the whole place as quite desirable property. It was located on a good graveled road, by which the school buses passed, and easily accessible from the schools, post office, and stores at Smyrna.

Proof as to the value of the land ranged from $125 an acre upward. The State does not contend that $5,700 found by the lower courts to be the value of the land taken is excessive.

After a careful examination of the record we reach the conclusion likewise that the incidental damages, $12,000 in amount, found by the jury, were not excessive.

The air base as laid out and constructed completely blocked the road from the Rascoe place to Smyrna. Instead of traveling three miles over a good graveled road, in order to reach Smyrna it is now necessary to travel about ten or eleven miles over roads, some of which are very bad, and some of which are not wide enough for two vehicles to pass. As the witnesses say, this farm, formerly a road-from farm, has become a backwoods farm. Not only is access to Smyrna, where the landowner trades and where the schools and churches are located, thus cut off, but Murfreesboro, Nashville, and the outside world generally have become quite inaccessible.

When the land for the air base was leveled, in order to drain the same, it was necessary to construe three sewers or drainage pipes. One of these pipes is nine feet in diameter and two of them are seven feet in diameter. The flowage from all of them empties very near the Rascoe farm, flows over a considerable portion of the remaining land, and has materially damaged some twenty acres of that land already with prospects of future damage.

The greater number of witnesses examined on the trial below placed the damage resulting to the land not taken from the two matters just mentioned at a considerly larger sum that the $12,000 allowed by the lower courts.

We are the better satisfied with the finding as to incidental damages because of one line of proof the trial judge excluded, which we think might very well have gone to the jury. One of the runways points directly at the residence on the Rascoe place and ends only about 200 yards from that residence. Mrs. Rascoe offered to prove that airplanes taking off in the direction of her home came over the dwelling house at a very low elevation, making a tremendous noise and, as it appeared, barely missing the house. She always entertained the fear that they might not attain sufficient elevation in the short distance between the end of the runway and the house to avoid striking the latter.

The trial judge excluded this evidence on the theory that such damage was common to all those living in the neighborhood of the air base. However, it does not appear that the dwelling house of anyone else is so close to the base nor directly in line with one of the runways. Moreover, it does not appear that the land of anyone else was taken in condemnation proceedings for this air base. Other lands going into the project were acquired by purchase. We hereafter refer to the rights of those no part of whose land was taken.

The case of Alloway v. Nashville, 88 Tenn. 510, 526, 13 S.W. 123, 126, 8 L.R.A. 123, was one in which the city reservoir was built upon part of the land taken. Apprehension of the landowner of a break in the reservoir and consequent flooding of his property was held properly to be taken into consideration in assessing his damages. It was said, 'Such apprehension, so far as it depreciates the present market value of the land not taken, is an element of incidental damages, and should be considered by the jury in making up their verdict.' So we think in the case before us apprehension on the part of the landowner of injury to the houses from the operation of airplanes in such close proximity might well have been considered by the jury in estimating the compensation to which she was entitled.

We have spoken above of the sewers constructed to drain the air base and the flowage from these sewers that came on the Rascoe land. The State objects strongly to the admissibility of this evidence. The land was taken in April or May and the trial in the circuit court way not had until the following November, during which time the land for the base had been leveled and the sewers constructed. The road too was closed after the land was taken and much of the proof as to this would be incompetent, under the State's theory.

There is no suggestion of negligent construction in the case. It is true that the rule announced in our cases is that damages in condemnation proceedings are to be estimated as of the time of the taking, and in Lebanon & Nashville Turnpike Co. v. Creveling, 159 Tenn. 147, 169, 17 S.W.2d 22, 28, 65 A.L.R. 440, it is said that, 'Happenings and conditions arising after the taking over of the properties were not proper to be sumitted to the jury. The value was to be fixed as of that date. Probabilities based on past experiences and present appearances were proper to be considered, but proof was inadmissible of events happening subsequently which could not be definitely foreseen at the time of the taking.'

In the above case, however, the Court was dealing with evidence sought to be introduced as to probabilities arising from events that occurred subsequent to the taking. The effort was to prove that automobile registration had increased in Wilson and adjacent counties and that accordingly the turnpike condemned had become of greater value at the time of the trial than it was at the time of the taking. Such proof could have furnished a basis for nothing but conjecture because no one could tell whether a motorist confronted by three tollgates between Lebanon and Nashville would use his car or continue to ride the bus or train. The increase in registrations might not have added to the revenue of the Turnpike Company in any appreciable amount. It was not proof of facts that was excluded.

In this jurisdiction where a considerable period usually elapses between the taking of the land and the ascertainment of damages in the circuit court, we can see no real objection to the admission of proof showing damage that has accrued to the land by the actual construction of a public improvement. The matter is well discussed by the New York Court of Appeals in one of the subway cases where the trial was not had for some time after the taking and proof was admitted as to the actual damage that had resulted from the construction of the subway. The lower tribunals had limited their awards to damages apparent or foreseen at the date when title vested in the City but the Court of Appeals said:

'The rule of evidence adopted by the commissioners was erroneous. They limited the witnesses in their

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