Ridings v. State Roads Commission

TIokney, J., delivered the opinion of the Court. This appeal from the award of damages in a condemnation proceeding presents a question of whether the trial court erred in refusing to admit evidence of consequential damage to personal property of the condemnees used in the operation of a tavern on the condemned land but not taken by the condemnor. The condemnor-appellee is the State Roads Commission. The condemnees-appellants are Kenneth and Mary Ridings.

The condemned property, which was zoned for commercial usage and contained 27,747 square feet of land improved by a tavern and' restaurant, a “retail” building leased as a fruit and vegetable stand and barber shop, and a dwelling occupied by the owners, is located in Howard County and is bounded by U. S. Route 29,, Montgomery Road and Old Columbia Pike. The necessity for the taking and the authority to do so, having been conceded, the only function of the jury was to ascertain the amount of damage sustained by the property owners. The total award amounted to $105,000. Apart from the land and the improvements, certain items of firmly affixed personal property, such as the bar, back bar, bar counter, sink, burglar alarm, screens, air conditioner, electric wiring and a walk-in refrigerator, were in place inside the tavern.

A list of these items and the estimated value of each were submitted to the jury. Also in the tavern, there were certain other items of readily movable personal property, such as stools, chairs, coolers, glasses, dispensers, cabinets and various types of machinery, which are normally found in a bar and restaurant. As to these (all of which were conceded to be personal property and not fixtures), the condemnees proffered the testimony of an expert in the sale of new and used restaurant and tavern furnishings and equipment with regard to the before and after taking valuations of such items for the purpose of showing the consequential damages allegedly sustained by the owners as a result of the taking of the premises. The con ³⁹⁸ demnor objected to the admissibility of the proffered evidence and the objection was sustained.

The trial court submitted the question of the character or nature of the firmly affixed items (as distinguished from the readily removable items) to the jury for a determination as to which of the items on the list were personal property and which were not with the explanation 1 that such of the items as were ■fixtures and enhanced the value of the land, should be included, 'to the extent of the enhancement, in the total amount of dam«ages awarded. On the objection of the condemnees to the instructions on account of the exclusion of the proffered testimony as ’to the readily removable items, the court made no further comment and overruled the objection. The jury found that all of 'the firmly attached items were fixtures. ³⁹⁹ As was said in M. & C. C. of Baltimore v. Himmel, 135 Md. 65 , 107 Atl. 522 (1919), fixtures in buildings are a part of the realty and as such must be considered and compensated for to the extent they enhance the value of the land taken. But items that are personal property and therefore not actually taken, must be excluded from the compensation award. 27 Am.

Jur. 2d Eminent Domain § 293; 4 Nichols on Eminent Domain § 13.13; Marraro v. State, 189 N. E. 2d 606 (N. Y. 1963); Lucas v. Carney, 149 N. E. 2d 238 (Ohio 1958). The power of eminent domain is derived from the sovereignty of the state. The constitutional provision and the statutes enacted pursuant thereto,