Veirs v. State Roads Commission
| Decision Date | 19 July 1958 |
| Docket Number | No. 288,288 |
| Citation | 217 Md. 545,143 A.2d 613 |
| Parties | H. Carlton VEIRS v. STATE ROADS COMMISSION of Maryland. |
| Court | Maryland Court of Appeals |
Donald K. Staley and Morgan L. Tenny, Silver Spring, for appellant.
David E. Betts, Sp. Atty. for State Roads Commission, Rockville (C. Ferdinand Sybert, Atty. Gen., Joseph D. Buscher, Sp. Asst. Atty. Gen., and Robert S. Rothenhoefer, Sp. Atty., Frederick, on the brief), for appellee.
Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
The State Roads Commission (the 'Commission'), appellee, instituted condemnation proceedings in this case, pursuant to Sec. 40B of Article III of the Maryland Constitution and Sec. 9 of Article 89B of the Code (1957 Ed.), in the Circuit Court for Montgomery County on August 10, 1956, to acquire for highway purposes 2,571 square feet in fee simple and easements in an additional 117 square feet on the westerly side of University Boulevard West at Wheaton. (No difference affecting damages was made between the property taken in fee simple and that taken for easements.) The parcel to be taken by eminent domain was a part of a tract of approximately 6,000 square feet owned by Arrel E. Godfrey and Sarah E. Godfrey (the 'owners' or the 'Godfreys'). It was improved by a building covering an area of approximately 1,400 square feet. This building was rented for use as a grocery store by the appellant, Veirs, under an extension of a lease which was to expire on August 16, 1959, or possibly on some later date which has not been made clear to us. Space was also rented by another lessee, one Kurtz, in either the same building or an adjoining one for use as a barber shop. The Commission duly filed and recorded its plats; and on filing this suit, it paid into court the amount ($2,100) which it estimated as the fair value of the property.
During the trial and in the court's instructions to the jury, August 10, 1956 was treated as the date of taking and we shall so treat it in this opinion, even though under Code (1957), Article 89B, Sec. 9, and our decision in LaFontaine's Heirs, etc. v. LaFontaine's Heirs, etc., 205 Md. 311, 107 A.2d 653; the date of taking may have been later--when the Commission took actual possession of the property to be acquired. For practical purposes this seems to make no difference in the present case for two reasons: first, under Sec. 15 of the above Article of the Code, August 10, 1956 is the date as of which the valuation of the property is to be made; and second, because actual, physical possession was taken by the Commission prior to the agreement to cancel Veirs' lease, which is more fully referred to below.
The jury fixed the total damages for the taking at $14,600, and apportioned this amount as follows between the owners and the two lessees: $13,180 to the Godfreys; $1,200 to Veirs and $220 to Kurtz. Veirs appealed from the judgment entered upon the jury's inquisition. The Godfreys and Kurtz did not; and though they were notified of the appeal, they have taken no part in it. The Commission has not appealed from the judgment and does not challenge the aggregate amount of damages awarded or the apportionment thereof.
Veirs contends that the trial court was in error in instructing the jury 'that the total allowance to all of the defendants in this case cannot exceed the value of the land taken plus the consequential damages'; and second, that the trial court was in error in instructing the jury that Veirs' leasehold interest in the property terminated as of October 31, 1957, the date as of which the lease was cancelled by mutual consent, though it would have continued but for this cancellation at least until August 10, 1959, and possibly longer. The Commission challenges both of Veirs' contentions, but suggests that if Veirs' second contention should be sustained, then the case should be remanded for a reapportionment of damages only as between the lessee, Veirs, and the owners, the Godfreys, but not for a new trial on total damages.
The instruction that the total allowance to all defendants could not exceed the value of the land taken plus the consequential damages, is in accord with the general rule adopted by this court. Gluck v. Mayor & City Council of Baltimore, 81 Md. 315, 32 A. 515; Mayor etc. of Baltimore v. Latrobe, 101 Md. 621, 61 A. 203; Mayor & City Council of Baltimore v. Gamse, 132 Md. 290, 104 A. 429. Cf. Lustine v. State Roads Comm., Md., 142 A.2d 566. An exception to this rule was recognized in the Latrobe case, if the evidence should show that the value of the leasehold interest in property subject to an irredeemable ground rent exceeded the balance remaining after deducting from the value in fee simple of the property taken the value of the reversionary interest allocated to that property. Here we have a short-term lease, not a ground rent; and we find nothing in the printed record which might serve to take the case out of the general rule by showing that the value of the sum of the parts exceeded the value of the whole. See State Roads Commission of Maryland v. Novosel, 203 Md. 619, 102 A.2d 563.
Furthermore, we find no objection to the trial court's instructions on this subject, and that alone would bar review. Rule 554, subd. e of the Maryland Rules.
We think that the appellant's objection to the instruction that his lease terminated on October 31, 1957 is well taken. The evidence shows that on August 10, 1956, he had a lease which would run until August 16, 1959, or possibly longer--some three or perhaps four years after the date of taking. The testimony shows that after the Commission started construction on the property taken it installed a curb which cut off vehicular access to the appellant's store from the road in front of it. The area taken and the adjacent area in front of the store had been used largely as a parking lot for the appellant's customers. He felt that the denial of vehicular access to and from the road in front of his store so injured his business as to make the property useless to him. He so advised Mr. Godfrey orally over a period of several months, after construction work had begun. Finally, at the end of October, 1957, Veirs and the Godfreys agreed to a cancellation of the lease to take effect November 1, 1957. A few weeks later--just before the trial of this case--the Commission, contrary to previous indications, agreed with the owners to cut the curb so as to permit vehicular access to the store formerly occupied by Veirs.
The court's instructions as to the valuation of the lease were as follows:
Neither the appellant nor any other party made any objection to the foregoing instructions, which appear to have been based upon the Gamse and Novosel cases, in each of which a complete taking of the leasehold interest was shown or stipulated. We think that the evidence in the record extract is not sufficient to show a complete taking of the leasehold interest, despite Mr. Veirs' claim that the whole value of his lease was destroyed. The measure of damages to the lessee would, therefore, seem to be the difference in market value of the lessee's interest before and after the taking. What is the market value of the tenant's lease after the taking may be affected by any of the terms of the lease (for example, whether he has to pay for alterations or repairs necessary to make the property tenantable), and it is, of course, directly affected by the amount of rent that he still has to pay. See Mayor, etc., of City of Baltimore v. Rice, 73 Md. 307, 21 A. 181; and Gluck v. Mayor & City Council of Baltimore, supra; John Hancock Mutual Life Ins. Co. v. United States, 1 Cir., 155 F.2d 977, certiorari denied 329 U.S. 774,...
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