Hance v. State Roads Commission

¹⁶⁷ Prescott, J., delivered the opinion of the Court. In this condemnation case, the appellants dispute the correctness of several of the rulings of the Circuit Court for Baltimore County on the admissibility, vel non, of evidence. The State Roads Commission (Commission), in its program of improving the highway system of the State, is acquiring 0.74 of an acre of land located on the east side of Belair Road belonging to the appellants. The date of the taking was March 4, 1959.

The tract is improved by three major buildings, referred to in the testimony as buildings one, two and three and a few outbuildings or sheds. The testimony concerning building three is the center of the real controversy. This building was located at the rear of building two, and the first floor contained one apartment unit, while the remainder thereof had been used as a cider mill and later as a box factory. The upper floor was divided into makeshift apartment units.

The pictures of it offered as exhibits by both sides, while only showing the exterior thereof, disclose that it is certainly not of very sturdy nor modern construction, and is, in fact, in a state of deterioration if not dilapidation. The Commission first called Mr. Helfrich, a real estate appraiser, who, after duly qualifying, testified that the value of the property as of the date of the taking was $22,500, using the capitalization of rent method of appraisal, and, by using the summation method, the value was $19,800. In this case, he adopted the capitalization method with reference to buildings one and two, which indicated a value of $22,500 for the entire taking. In arriving at his total valuation, this witness (while placing a value on building three which was reflected in his total) did not use any capitalization method with reference to building three.

During the course of his testimony, he was asked by appellee’s counsel why he had failed to do so. He replied, “In my opinion, and I have not seen Building No. Three from the time I started on June 30th [1958] through to the present moment, where I feel it is fit for human habitation.” The appellants moved to strike this answer, and the trial court’s refusal to do so is assigned as error. ¹⁶⁸ The only authority cited for the alleged error is Battisto v. Perkins, 210 Md. 542, 548 , 124 A. 2d 288 . There, the trial court had sustained objections to questions to two witnesses, one a real estate and appraisal expert, the other a builder and developer, as to “how builders in the Washington area customarily meet a drainage problem.”. The defendants in an action for damages for the alleged acceleration of the natural flow of water produced testimony that they had employed an engineer to make a drainage plan for their development, which was ultimately installed.

The Court, through Judge Henderson, pointed out that each location presents different drainage problems; consequently, mere generalizations as to custom or usage would not seem relevant. Also that the trial court had taken the view that drainage was an engineering problem, and the witnesses were not qualified to express opinions in that field, and, the question of the qualifications of an expert being largely in the discretion of the trial court, there was no error in the rulings. We think the evidence objected to in the case at bar was clearly relevant and admissible. It was nothing more nor less than an expert, who had expressed his opinion as to value, stating his reasons for the opinion given; and these reasons may be elicited by the party who has called the witness, as well as by the opposite party upon cross-examination.

In Baltimore Belt R. R. Co. v. Sattler, 102 Md. 595, 602 , 62 A. 1125 ; 64 A. 507 , this Court said, “[a]n expert witness * * * may give his opinion as to the value of the property * * * and he may state to the jury the reasons upon which his opinion is based, in order that they may judge of the value of his testimony.” Again, in Baltimore City v. Hurlock, 113 Md. 674, 683 , 78 A. 558 , the Court quoted, with approval, from an Illinois case as follows: “ ‘The facts upon which opinions of expert witnesses as to the value of property proposed to be taken in condemnation proceedings, may be stated by them, either in chief, or upon cross-examination’ * * * as their [the opinions’] weight and value depends largely upon the foundation of fact and reason upon which they stand.” See also M. & C. C. of Balto. v. Smith, etc. B. Co., 80 Md. 458, 472 , 31 A. 423 , 2 Wigmore, Evidence (3rd Ed.), Secs. 562, ¹⁶⁹ 655. Cf. State Roads Comm. of Md. v. Novosel, 203 Md. 619, 626 , 102 A. 2d 563 . The appellants’ next contention is their principal one, and covers many pages in their brief.

We shall state and consider it as succinctly as possible. After Mr. Helfrich had testified as we have indicated above, Mr. Heinmuller, another real estate appraiser, was called by the Commission and stated in his opinion the entire property had a value of $22,800 at the time of the taking, using the summation method. He stated that, while he allowed a valuation for building three in his calculation of value, he did not attempt to compute any value for this building by assuming a rental schedule, because he did not believe the building could “properly and successfully be used for people to live in”; that he had seen many buildings of that character through the years, and, while it was possible that income could be secured by rentals, the “stability of such income, the possibility of its continuing, the possibility of keeping tenants in such a building for any length of time * * * is speculative, through experience, that I would give no value to such income.” The Commission then produced Mr. Piel, the Building Engineer for Baltimore County, whose duties involve the enforcement of the Building Code, which embraces the issuance of permits, inspection of all buildings and construction and places of occupancy that have been erected. Mr. Piel produced a file, which contained three letters from him made in the regular course of business in his capacity as Building Engineer, to Mr. Hance, one of the appellants, relative to building three.

The letters were dated January 24, 1952, September 9, 1955, and September 23, 1955, respectively, and were admitted, over objection, by the court, apparently upon the theory that they were “made in the regular course” of business and admissible under Code (1957), Article 35, Section 59. The contents of the letters, summarized for brevity, were: In January, 1952, Mr. Piel notified Mr. Hance that sometime before, at about the time of a fire on the second floor, an inspection had been made of building three and it was “determined that this building is not safe or fit for human habitation” and Mr. Hance had been requested not to permit any ¹⁷⁰ tenancy in the building until such time as it had been rehabilitated in such a manner that it would be acceptable to the Health, Fire and Building Departments. Mr. Piel was informed that an elderly man was living in the building and therefore requested Mr. Hance to discontinue the tenancy until the building was made safe for human occupancy. Under date of September 9, 1955, Mr. Piel notified Mr. Hance that another inspection of building three had been made as of that date, and it disclosed that the second floor was being used as apartments, which use would have to be discontinued due to the fact that the building “is not fit for human occupancy.” In reply to this letter, Mr. Hance requested from Mr. Piel “some leniency”; and the third letter from Mr. Piel to Mr..

Hance simply stated that he [Piel] understood Hance’s feeling in the matter, but the building was not “fit for human occupancy.” In addition to these three letters, the court admitted, over objection, the Building Code of Baltimore County of 1946, which was changed in 1956 by the adoption of a new one. The appellants advance various and sundry reasons as to why the letters and the Building Code were inadmissible and their consideration by the jury prejudicial. Rather than to consider each reason separately, it will, we think, conserve considerable space if we simply state our reasons for concluding that the trial court’s rulings were correct. As the taking in the instant case was the entire parcel of land owned by the appellants, the issue for the jury’s determination was: What was the fair market value, as of March 4, 1959, of the land taken as enhanced by the buildings upon it?

Baltimore City v. Himmel, 135 Md. 65, 71 , 107 A. 2d 522 ; 4 Nichols, Eminent Domain (3rd Ed.), Sec. 13.11 [2]. And the owners were not entitled to anything for building three unless it increased the market value of the land taken. 4 Nichols, ibid. Thus, as bearing upon the market value of the land, it was competent for the condemnee to show the advantageous factors relative to the land and building three and for the condemner to disclose their disadvantageous aspects. 5 Nichols, op. cit., Sec. 18.11 [1]. It may properly be conceded that, ordinarily, a condemner ¹⁷¹ would not, in order to establish the value of property as of March 4, 1959, show its condition in 1952; but any evidence of such value as of March 4, 1959, which is competent under the general rules of evidence, and which is material and relevant to the question of value may be admitted.

Applefeld v. Baltimore, 134 Md. 528 , 107 A. 2d 347 ; Williams v. New York, etc. R. Co., 153 Md. 102 , 137 A. 2d 506 ; 5 Nichols, op. cit., Sec. 18.11. In the instant case, the Commission offered evidence to show not only the condition of building three in 1952, but continuously thereafter down to and including the time of the taking on March 4, 1959, which included the improvements made thereon by the owners. Mr. Hance stated that the only improvements to this building since 1950 were repairs to the “apartment where the fire was, painting the outside and putting up the new steps.” The jury’s personal inspection of the property took place less than three months after the taking and the members thereof saw the improvements and the condition of the property, which had not been changed from the date of taking until the jury’s inspection. This same jury heard the owners’ two real estate appraisers testify, respectively, that the property was worth $44,950 and $42,000 using the summation method, and $42,533 and $45,500 by the capitalization of rents method.

And the jury heard the testimony offered by the appellants that parts of building three had been (and possibly still were) being rented. After the testimony of both sides as to value was concluded, the trial judge included in his instructions the following: “The court instructs you that in fixing your award of compensation, * * * you are to base your findings of the taking, which was March 4, 1959, for the highest and best and most profitable use for which it was adapted, including the highest and best and most profitable use for which you, the Jury, may find the property of the Defendant could at the time of the taking have been applied whether or not in fact it was being applied to the highest and best use at that time.” Thus, it is seen that the issue of value was fairly and fully placed before the jury for its determination, and we find no error in the court’s rulings thereon. The