Griffith v. Montgomery County

LISS, Judge. This is an appeal from a jury award of $65,000 to the appellants, Wiley G. Griffith and Carrie A. Griffith, in an eminent domain proceeding tried in the Circuit Court for Montgomery County. The appellee, Montgomery County, acquired 1.66 acres of the appellants’ 39-acre farm for the construction of a road pursuant to the authority contained in Maryland Constitution, Art. Ill, Section 40A, and Montgomery County Code (1972, as amended), Section 49-50. The appellants challenge the exclusion of three claimed elements of consequential or severance damage by the trial court and the exclusion of an appraisal report done on a neighboring piece of property by one of the appellee’s experts.

In May, 1980, the appellants were the owners of 39.4 acres of property that bordered on Maryland Route 108 on their north property line, and was bisected in a generally east-west direction by a 250-foot wide strip of land owned in fee simple by Potomac Electric Power Company (hereinafter Pepeo). Within that strip Pepeo had erected a series of twin 200-foot transmission towers supporting high voltage power lines. The Pepeo strip was acquired by a 1957 deed between Pepeo and the appellants’ predecessors in title. North of the appellants’ property and across Maryland Route 108, Montgomery County had previously acquired several hundred acres of land for the construction of a landfill.

Portions of the appellants’ property were acquired to construct Fieldcrest Road, which was built in an east-west direction and connected Maryland Routes 124 and 108. The road was built with the intent that it would serve as part of the designated access route to the landfill. As much as possible, Fieldcrest Road was located within the 250-foot strip of land owned by Pepeo. The Pepeo land was obtained ⁴⁷⁷ by Montgomery County from Pepeo in an unrelated transaction.

On May 14,1980, following unsuccessful negotiations with the appellants, the appellee, in accordance with Article III, Section 40A of the Maryland Constitution and the enabling legislation in Section 49-50 of the Montgomery County Code, deposited the sum of $40,700 into the Registry of the Court and took immediate possession of the portions of the appellants’ land necessary for the construction of Fieldcrest Road. A condemnation action was subsequently filed, and the trial took place on February 7 and 8, 1983. Prior to the start of the trial, the appellee’s counsel filed two motions for the purpose of excluding three of the appellants’ claimed elements of consequential damage. The first motion requested that the appellants be precluded from introducing evidence regarding the impact, if any, on the appellants’ remaining property due to the proximity of the landfill operation.

The appellants’ property was taken for a road and not for the landfill, and the court ruled that “the factor of the landfill cannot be used insofar as the damages are concerned.” The other two factors for which the appellants sought compensation were for the loss of two purported easements that the appellants contended they enjoyed over the 250-foot strip owned by Pepeo. Both interests were expressly created by the deed between Pepeo and the immediately preceding owners of the property from whom Pepeo acquired the 250-foot wide swath of land. The deed gave fee simple title to Pepeo but “reserv[ed] to the Grantor(s), as the owner(s) of lands abutting the Property, and to the Grantor’s successors in such ownership (A) the right and privilege to use the Property for agricultural purposes so long as such use does not interfere with any use of the Property which the Grantee its successors and assigns may at any time or times desire to make.” The trial court denied the appellants’ request for compensation for the loss of this agricultural use. ⁴⁷⁸ The appellants were also precluded from introducing into evidence their claim for $15,385.40 of additional costs they purportedly would incur in order to meet the grade of Fieldcrest Road, if and when the appellants ever construct a road connecting their two separate parcels. Appellants contended that this cost would not have been incurred had Fieldcrest Road not been constructed.

The added construction and additional cost would take place at a point on Fieldcrest Road that was entirely within the property owned by Pepeo. The entitlement to this additional compensation is, according to appellants, founded on the language in the deed whereby the grantors and their successors in ownership reserved “... the right and privilege to cross, at their own risk, the Property, using lanes and roads now established or which may hereafter be established.” The appellants’ final argument is to the trial court’s exclusion of an appraisal of a property adjacent to the appellants’ property, which one of the County’s expert appraisers had performed two years after the appraisal of the appellants’ property. The evidence was offered as impeachment evidence challenging the expert’s credibility. The trial court ruled that this extrinsic evidence was inadmissible because it was collateral to any of the issues in the proceeding and a proper foundation for this evidence had not been established.

Without being permitted to take the damages resulting from the whole project and the other damages into consideration, the appellants’ two appraisers determined the just compensation due appellants as a result of the taking to be $200,000 and $129,000, respectively. Appellee’s two appraisers determined the just compensation due to be $40,700 and $44,000, respectively. The case was then submitted to the jury, which returned a verdict in favor of appellants in the amount of $65,000. Appellants then noted this appeal, raising the following issues to be determined by this Court: ⁴⁷⁹ 1.

Whether a property owner who has had a parcel of his property taken as part of a public project is entitled to consequential damages to his remainder flowing from the entire project? 2. Whether the trial court erred in refusing to permit the property owners to present evidence establishing consequential damages resulting from the taking in the form of increased development costs which the property owners will incur when they develop their property? 3. Whether the trial court erred in refusing to permit the property owners to present evidence establishing the value of an easement for agricultural purposes which was taken as part of the property condemned? 4. Whether the trial court erred in refusing to permit the property owners to present as evidence at trial an appraisal of adjacent property prepared by one of the appraisers for Montgomery County, Maryland? 1.

Maryland Code (1974, 1981 Repl.Vol.) Section 12-104b of the Real Property Article provides that a property owner who has had part of his tract taken is entitled to consequential damages “.. . by reason of the taking and of future use by the plaintiff of the part taken.” (Emphasis supplied.) See Stickell v. Mayor of Baltimore, 252 Md. 464 , 250 A.2d 541 (1969); Duvall v. Potomac Electric Power Company, 234 Md. 42 , 197 A.2d 893 (1964). In determining just compensation for the tract actually taken, the depreciation to the remaining land and the use to which the taken part was put should be considered. United States v. Grizzard, 219 U.S. 180, 184 , 31 S.Ct. 162, 163 , 55 L.Ed. 165 (1911). The Supreme Court later held that “just compensation ... to an owner .. . does not include the diminution in value of the remainder, caused by the acquisition and use of adjoining lands of others for the same undertaking.” Campbell v. United States, 266 U.S. 368, 372 , 45 S.Ct. 115, 117 , 69 L.Ed. 328 (1924). ⁴⁸⁰ Despite this statement, subsequent federal courts have interpreted Campbell to mean that the awarding of this type of consequential damage would be appropriate in certain situations.

In United States v. Pope and Talbott, Inc., 293 F.2d 822, 825 (1961), the Ninth Circuit Court of Appeals stated: With reference to circumstances regarded as significant in Campbell , we note that here the land taken was indispensable to the dam project; the damages resulting to the remainder from the use of the land taken are inseparable from damages resulting to the remainder from the use of government land. Further, we note and regard as significant the fact that the land taken did not form an inconsequential part of the tract ultimately put to the damaging use. It was not only indispensable, its contribution to the project and to the damage produced by the project was substantial. In the more recent case of United States v. 15.65 Acres of Land, 689 F.2d 1329 (9th Cir.1982), the same Court expressly followed the interpretation of Campbell presented in Pope and Talbott, Inc. The Court stated that the owner could recover this type of consequential damages if the property owner can establish that his property was indispensable to the overall project, that the use put to his property taken was a substantial part of the overall project, and that the damages flowing from the overall project cannot be separated between the use put to the property taken from the property owner and the use put to abutting property taken. 689 F.2d at 1332 .

The Maryland Court of Appeals encountered this same issue in Johnson v. Consolidated Gas, Electric Light & Power Company of Baltimore, 187 Md. 454 , 50 A.2d 918 (1947). In Johnson , a portion of appellants’ land was taken for a right-of-way by a local utility. Transmission towers and electric power lines were placed within the right-of-way. Appellants contended that the severance damage to their remaining property was not limited to consideration of those portions of the improvements placed on their property. ⁴⁸¹ They argued that since the entire transmission line was a single unit they were entitled to damages arising from the construction of the proposed transmission line across the property of others because their property would be damaged by the sight of the line on the property of others.

The Court held that the appellants were not entitled to damages by reason of the taking and use of abutting property. 187 Md. at 470 , 50 A.2d 918 . The Court concluded that “[i]n the instant case, as in the case of Campbell v. United States of America, supra, the damages resulting to the remainder of the land not taken were separable from those caused by the use to be made by the land acquired from others....” Id., at 473, 50 A.2d 918 . We conclude, in light of the cases previously cited, that the trial court was correct in excluding the impact of the landfill without conducting an evidentiary hearing. It was obvious that there was a basic difference between the two projects here under consideration; one was a condemnation for the creation of a road, the other for the establishment of a landfill.

While it was obvious that the establishment of the road was useful in conjunction with the use of the landfill, it was also clear that the use of appellants’ property was segregable from that to which the property of their neighbors was being put. This is precisely the distinction established by Section 12 104(b) of the Real Property Article. The property owner receives “severance or resulting damages to the remaining land by reason of the taking and future use by the plaintiff of the part taken.” Potomac Electric & Power Company v. Smith, 37 Md.App. 640 , 378 A.2d 715 (1977). In the instant case, the appellants’ land was used to construct a road and its use for that purpose is readily separated from the use of other properties utilized as a landfill.

In United States v. Pope and Talbot, supra, and United States v. 15.65 Acres of Land, supra, the cases were determined on the question of whether damages were capable of being separated. In those cases, the portion of the property owner’s land appropriated was put to the same use as the neighboring lands. This was not the case in the ⁴⁸² proceeding presently before us. The appropriation of appellants’ land for use as a road is clearly differentiated from the land taken for the purposes of use as a landfill, and the damages resulting from each are clearly separable.

We perceive no error. 2. Appellants next contend that it was error for the trial court to preclude the introduction into evidence their claim for $15,385.40 of costs which they would incur if appellants were to build a road across the Pepeo property and Field-crest Road to connect their two parcels of land. The cost represents the charges appellants would incur in bringing a connecting road to the grade of Fieldcrest Road at a point where that road is within the 250-foot Pepeo strip on either side. In the deed dated October 10,.