West Virginia Dept. of Highways v. Delta Concrete Co.

• Decision Date: 15 July 1980
• Docket Number: No. 14664,14664
• Citation: 268 S.E.2d 124,165 W.Va. 398
• Parties: WEST VIRGINIA DEPARTMENT OF HIGHWAYS v. DELTA CONCRETE CO., etc., et al.
• Court: West Virginia Supreme Court

Page 124

268 S.E.2d 124

165 W.Va. 398

WEST VIRGINIA DEPARTMENT OF HIGHWAYS v. DELTA CONCRETE CO., etc., et al.

No. 14664.

Supreme Court of Appeals of West Virginia.

July 15, 1980.

Syllabus by the Court

1. "The admission of evidence merely cumulative is within the sound discretion of the trial court, and unless the court abuses such discretion, the admission or exclusion of such evidence will not constitute error." Syl. pt. 3, Elswick v. Charleston Transit Co., 128 W.Va. 241, 36 S.E.2d 419 (1945).

2. "A jury verdict based on conflicting testimony, involving the credibility of witnesses and approved by the trial court, will not be set aside by this Court on the ground that it is contrary to the evidence unless in that respect it is clearly wrong." Syl. pt. 1, Levine v. Headlee, 148 W.Va. 323, 134 S.E.2d 892 (1964).

McCamic & McCamic and Jeremy C. McCamic, Wheeling, for Delta Concrete Co.

Joel, Petroplus & Thompson, David J. Joel and William G. Petroplus, Wheeling, for West Virginia Dept. of Hwys.

PER CURIAM:

The appellant in this eminent domain proceeding, Delta Concrete Company, was awarded $117,755 for land condemned by the West Virginia Department of Highways (Department). On appeal, Delta contends that the Circuit Court of Ohio County erred in refusing the admission during trial of photographs and other evidence which would have shown that the condemned property was suitable for a river dock facility. Delta also contends that the jury's verdict was contrary to the weight of the evidence adduced.

We conclude that the rejected evidence was merely cumulative and that the jury's verdict was supported by the evidence, and affirm the decision of the Circuit Court.

The City of Wheeling owned a parcel of land known as the Hubbard Playground which was located in the path of the Department's proposed Project No. QI 470-1(11)0. By contract with the Department and by municipal ordinance, the City agreed to transfer the land to the Department in exchange for another parcel suitable for a playground. To provide the City with an appropriate tract, the Department instituted this proceeding against Delta to condemn a portion of a parcel owned by Delta adjacent to the Ohio River. ¹

The question of the value of the condemned property was tried before a jury on October 30, 1978. Prior to trial, the Department deposited with the Court $67,000, the estimated value of the take. The appellant prayed for compensation in the amount of $1,470,000, and its expert set the value at $1,325,000. Experts for the State estimated that the value was between $76,750 and $86,300. On October 31, 1978, the jury returned a verdict in the amount of $117,755.

During the trial, the landowner attempted to establish that the highest and best use of the land was as a coal loading dock and facility. Several of appellant's assignments of error go to the trial court's rulings on evidentiary matters. Two of appellant's assignments relate to the court's rejection of evidence which the appellant attempted to introduce showing that a rail siding entered the property at the time the Department took possession of the tract. Another of the appellant's assignments is that the trial court refused to admit into evidence a photograph of a coal loading dock which had not been installed on the premises, but which the appellant had proposed to install.

The appellant attempted to admit into evidence, as Defendants' Exhibit 1, the ordinance and contract between the City and the Department. Included in the exhibit were "Plans for Construction of Hubbard Playground Relocation." Page S-2 of those plans showed a railroad siding leading into appellant's property. The appellant also sought to introduce a certain aerial photograph taken of the property in 1959 which purported to show features of the property, including the siding, on June 11, 1976, the date of the take, but the court rejected the offer.

The trial court apparently rejected the plans when the landowner's engineer testified that he had not prepared them, but rather asserted that they were State highway plans and that he was familiar with them. The photograph of the property was refused on the basis that it did not accurately portray the property in view of the fact that it was taken in 1959, notwithstanding the fact that it had been presented at the Commissioner's hearing by joint agreement of the parties. The photograph of a coal loading dock was refused since it was not actually installed at the time the property was condemned. In view of our ultimate disposition of the case, we need not make a determination of whether these rulings were erroneous, since this evidence was merely cumulative to other evidence that was admitted.

The evidence at trial demonstrates that the landowner did present evidence through its witnesses Messrs. Schellhase, Seabright and Criss, that there was a railroad siding on the property at the time the State condemned the property. The State did not contest this fact.

It is also clear from the record that the landowner's entire theory of value was that the property's highest and best use was as a coal loading facility. Its expert witness, Mr. Criss, testified extensively as to this fact. It was based upon this theory that the landowner's value of $1,325,000 was placed before the jury.

Ordinarily, photographs and plans are admissible if they accurately depict relevant facts. Thrasher v. Amere Gas Utilities Co., 138 W.Va. 166, 75 S.E.2d 376 (1953); Wiseman v. Terry, 111 W.Va. 620, 163 S.E. 425 (1932). In the present case, even if the photographs and plan were admissible, we do not deem them to be critical pieces of evidence, since the facts which they depicted had already been established by uncontradicted evidence from several witnesses. To this...