Hutchison v. Baltimore Gas & Electric Co.

Marbury, J., delivered the opinion of the Court. Baltimore Gas and Electric Company, appellee, filed a petition in the Circuit Court for Howard County to acquire by condemnation from Mary Louise Hutchison, appellant, land for an overhead transmission line right-of-way 66j4 feet wide and 5,723 feet in length, the total fee simple taking comprising some 8.7 acres. The condemnor also sought to acquire an easement 75 feet wide adjacent to the fee simple strip for the purpose of trimming, cutting and removing any trees on the same. The case was tried before a jury, Judge Macgill presiding, for the purpose of determining the amount of damages caused to the property owner by the taking, and the jurors returned a verdict upon the inquisition in the amount of $34,000.

The sole question to be resolved on this appeal is whether the trial judge was correct in striking, and instructing the jury to disregard, the testimony of Campbell V. Helfrich, one of the appellant’s expert witnesses. The property of the appellant here involved is an irregularly shaped tract consisting of some 285 acres running from Ste ³³¹ phens Road on the west and thence in a generally southeasterly direction to the Baltimore-Washington Boulevard on the east, where her property borders on the Boulevard for some 800 feet. The witness Helfrich in valuing the subject property and in fixing the damages due to the condemnation used what he termed the “before and after” method. For this purpose he divided the Hutchison tract into several sections and added the respective values attributed to each so as to arrive at a total value before the taking; he then estimated the value of each .section after the taking, totaling them; and the difference between the two aggregates constituted his estimated damages.

To this end, he segregated a portion of the tract beginning with the 800 feet fronting on the Boulevard and extending westerly back along both the northeasterly and southerly sides of the property for a distance of 1,300 feet so as to form a quadrilateral, containing approximately 25.7 acres. He testified that he treated this entire 25.7 quadrilateral portion of the property as though it were zoned M-l (Light Manufacturing) and valued the land lying therein at $7,500 per acre. In fact, about 10 of these 25.7 acres were then zoned R-20 (Residential-single-family dwellings). The reason which Helfrich gave for so treating the property was that the property owned by third parties, lying to the north and to the south of the above mentioned 10 acres of R-20, had already been zoned M-l and he thought it logical that the intervening strip owned by Mrs. Hutchison should likewise be so zoned.

In response to a question propounded by Judge Macgill, the witness admitted that he had assigned a M-l value to that portion of the 25.7 quadrilateral which was zoned R-20. Later Helfrich testified that a buyer would naturally pay more for the 10 acres if it were already zoned M-l than he would if he were faced with the risk of changing the zoning to M-l, but he candidly stated that he could not estimate how much more a potential buyer of the property would pay for the more valuable M-l zoning. Finding no consequential damages to this 25.7-acre quadrilateral section due to the adjacent easement strip, Helfrich testified that the total taking within this section would be 0.93 acres, and damages (at $7,500 per acre) consequent to the taking to be $6,975. Within' the other sections he estimated -damages to be ³³² some $55,320, for a total of $62,295.

At the conclusion of the direct examination of Helfrich, the trial judge granted the condemnor’s motion to strike his testimony, on the ground that the witness had treated certain portions of the tract as though it had already been zoned to a more valuable classification, when in fact that rezoning was only a possibility and thus his valuation of the land was too high by some amount which the witness himself could not ascertain. The appellee produced two expert witnesses, John A. Magee and William B. Stromberg, who testified that the damages to Mrs. Hutchison’s property would be $26,800 and $26,414, respectively. Besides Helfrich, the appellant property owner produced Marion Cox, another expert real estate appraiser, who testified that the damages to the property would be $66,160, and Bernard Willemain, an expert in the field of planning and zoning, who testified that the 10 acres lying within the 25.7 acres quadrilateral should be reclassified from R-2G to M-l and that in his opinion such a rezoning would be allowed by the zoning authorities and upheld by the courts. We think the trial judge was correct in excluding the testimony of the witness Helfrich.

As pointed out by the appellant, it is permissible for an appraiser, when valuing property in a condemnation case, to consider the probability of a tract being rezoned to a higher or lower classification in the reasonably near future. Bergeman v. State Roads Comm., 218 Md. 137 , 146 A. 2d 48 ; Lustine v. State Roads Comm., 217 Md. 274 , 142 A. 2d