State Roads Commission of State Highway Administration v. Brannon

BISHOP, Judge. In this condemnation case, the State Roads Commission of the State Highway Administration appeals a judgment of $23,500.00 entered in favor of the appellees, Larry A. and ³⁶² Linda L. Brannon, after a jury trial in the Circuit Court for Prince George’s County. Appellant filed in that Court a petition to acquire about one-third of an acre from the appellee’s 6% acre residential property. The State needed the property to construct part of a dual lane controlled access highway (relocated Maryland Route 193).

When it filed its condemnation petition on July 13,1981, appellant deposited with the Court $3,114.00, which it deemed the fair market value of the property, including damage, if any, to the remainder. The case was certified to the Board of Property Review of Prince George’s County, which, after taking evidence and viewing the property, awarded appellee $3,180.00 for the land taken, plus $10,-000.00 for resulting damage to the remainder. Dissatisfied with the award, appellant filed a “quick take” condemnation petition on May 5, 1982, in the Circuit Court for Prince George’s County. Md. Const., Art. Ill, § 40B; Md. Transp.

Code Ann., § 8-318, et seq. When it filed that petition, appellant deposited $3,114.00 (the same amount set out in the acquisition petition of July 13, 1981, which had been heard before the Board of Property Review) with the Clerk of the Circuit Court. Appellee landowners filed an answer to the petition. A jury returned an inquisition in appellees’ favor in the amount set out above.

This appeal followed. The State Roads Commission makes four assignments of error, which we will consider in the following sequence: 1. The lower court erred in permitting Mrs. Brannon to base her claim for damages on a change in the neighborhood and in failing to instruct the jury to disregard such a claim. 2. The lower court erred in failing to instruct the jury to disregard appellees’ claim that noise or dust from the road damaged their remaining land. 3.

The lower court erred in refusing to permit the rebuttal evidence proffered. ³⁶³ 4. The lower court erred in precluding final argument as to the inference to be drawn from the failure of the property owner to call her appraisers. I. and II. Just Compensation for Resulting Damage to Remaining Land Appellant State Roads Commission suggests that the trial court should have prohibited the jury from considering certain elements in measuring just compensation for damage the road caused to appellees’ remaining land.

A. At a pretrial hearing on its motion in limine, appellant moved to exclude as a basis for damages to the remainder of appellees’ property all evidence or argument about change in the character of the neighborhood — rural to suburban or suburban to urban — resulting from construction and use of the road. In order to clarify what it was appellant was attempting to exclude, the hearing judge (Femia, J.) phrased it in a hypothetical jury instruction: “Ladies and gentlemen of the jury, moving from rural to suburbia is not compensable; if it’s been proven to you that that roadway is causing noise, pollution or whatever, you may compensate for that. You may not compensate merely because it gives the character of the neighborhood a more suburban and urban look than a rural look.” Later, in the hearing, the following exchange occurred: “THE COURT: . . . What [appellant’s counsel] is concerned with is one or another witness is going to be called by the defendant to the witness stand and the question is going to be posited to the witness, ‘Now that you are no longer living in bucolic America how do you feel?’ That’s what he’s scared of, that general question coming off.

Because he says legally how they feel is not compensable and I tend to agree. ³⁶⁴ MR. LEHMANN: [Appellees’ Counsel] Your Honor, I agree with that.” The court then said: “.. . I don’t think I need to rule at this point in limine then based upon Mr. Lehmann’s (appellee’s counsel) representations to the Court. I will deny the motion in limine.

But, I am going to have to stay wide awake during this trial. I can see that.” The motions judge, however, did not preside at trial. The trial court (Ahalt, J.) permitted Linda Brannon, one of the appellees, to testify that her claim for damages to her property was based, in part, on a change in the neighborhood caused by the construction of the road. Her counsel asked for the reasons that she assigned for the diminished value of her property.

After the Court overruled appellant’s objection, she responded: “In 1976 when Mr. Brannon and I sought out a home of this caliber, it took us a long time to do so. Yes, the house was the main attraction. We had to use a lot of imagination because of the work that was involved. But it was the house and the property, the combination of the two, that sold us on this place.

We appreciated the country atmosphere, that it had to offer us. At the time our children were very small. The quietness, the environment, the feeling that my children had their freedom in this country atmosphere, and in 1977 when I first learned that this highway was coming through, I was very distraught because of what it was going to do to us. My first reaction was that the quietness would be gone.

We would have the noise from the traffic on the road. We would have the litter, the pollution. Just the idea of the closeness of the highway to us, what it was doing to this piece of property was altering it . . . from a country atmosphere.... ” After further objection Mrs. Brannon continued: ³⁶⁵ “The highway was altering this piece of property entirely and we were both very saddened about it. There’s nothing we can do about the highway, but I do feel that Mr. Brannon and I should be compensated for the damages that it’s causing to our property.” The Court then permitted a bench conference: “MR.

LEONNIG: [Appellant’s Attorney]. We argued the question of the change in the setting of the property or so-called — her claim of lack of country or losing country atmosphere before Judge Femia as a preliminary matter and it was my understanding from Judge Femia’s ruling as well as Mr. Lehmann’s understanding that that would not be proffered in the case, it was not to be proffered in the case. That is not a proper item of damage in a condemnation case. If the property goes from rural to suburban or suburban to rural.

THE COURT: If that is an objection, it is overruled. If it’s a motion to strike, it is denied. MR. LEONNIG: It’s a motion to strike.

THE COURT: It is denied.” Appellant later excepted to the trial court’s failure to instruct the jury that “a change in the neighborhood is not a compensible [sic] item of damage.” The court also refused to deliver appellant’s proffered instruction that “under the law of Maryland, no damages are allowable with regard to the normal dust and noise incidental to the construction of a highway or its use.” The court explained its refusal to appellant’s counsel: “THE COURT: I don’t think there’s any evidence to support the giving of that. There’s no testimony that’s been brought up as to that or even been brought up by any of the parties. MR. LEONNIG: That’s what I’m saying and I think it ought to be taken out of the case.

THE COURT: I don’t think it’s in the case. So, I didn’t give it for that reason. MR. LEONNIG: I don’t think it’s in the case either. ³⁶⁶ THE COURT: All right.

MR. LEONNIG: But we think it ought to be given because we think there will be an argument to that effect. And the other is— THE COURT: Well, I’ll prohibit any argument because there’s no evidence, in the case concerning construction. MR.

LEONNIG: Or its use. THE COURT: Or its use. MR. LEONNIG: I have on the tag end of it or its use.

THE COURT: Well, I think it’s [sic] use is relevant to the case. MR. LEONNIG: I don’t think there’s any evidence what the noise will be from the highway or what the dust will be.” Appellant argues that the trial court erred in permitting the jury to consider, as elements of damage to the appellees’ remaining land, the elements of noise, dust, and possible change in the character of the neighborhood resulting from the road. B. When, as here, the State takes a portion of a landowner’s property, it is obligated to provide him just compensation not only for the part taken, but for consequent depreciation to the remaining land.

E.g., Andrews v. City of Greenbelt, 293 Md. 69, 76-77 , 441 A.2d 1064 (1982); Dodson v. Anne Arundel County, 294 Md. 490, 494-95 , 451 A.2d 317 (1982); Mont. Co. v. Old Farm Swim Club, 270 Md. 708, 711-12 , 313 A.2d 458 (1974); Pumphrey v. State Roads Comm’n, 175 Md. 498, 505 , 2 A.2d 668 (1938). U.S. Const, amend. 5; Md. Const, art. Ill, §§ 40, 40B.

See generally 4A Nichols on Eminent Domain, § 14.03 at 14-62 (Rev. 3d ed. 1981); 27 Am.Jur.2d Eminent Domain § 310 at 124 (1966). Compensation is required for damage to the untaken portion because it would be unjust to permit the State to carve out a segment of an owner’s land without paying for detriment to ³⁶⁷ the remainder. 1 L. Orgel, Valuation Under Eminent Domain 226 (1953). This requirement is statutorily enunciated in section 12-104(b) of the Real Property article: “ Where part of tract taken. — The damages to be awarded where land, or any part of it, is taken is the fair market value of the part taken, but not less than the actual value of the part taken plus any severance or resulting damages to the remaining land by reason of the taking and of future use by the plaintiff of the part taken. The severance or resulting damages shall be diminished to the extent of the value of the special (particular) benefits to the remainder arising from the plaintiff’s future use of the part taken.” Quoted in Griffith v. Montgomery County, 57 Md.App. 472 at 479 , 470 A.2d 840 (1984).

Oxon Hill Rec. Club v. Prince George’s County, 281 Md. 105, 107 , 375 A.2d 564 (1977). The quoted section rephrased and supplanted former article 33A, section 5(b), which essentially restated the case law as it existed for many years. State Roads Comm. v. Adams, 238 Md. 371, 376-77 , 209 A.2d 247 (1965); Duvall v. Potomac Electric, 234 Md. 42, 45 , 197 A.2d 893 (1964); Baker & Altfield, “Maryland’s New Condemnation Code,” 23 Md.L.Rev. 309, 316 (1963).

The statute should be construed to effectuate the constitutional purpose of providing just compensation for damage to the remainder. Ridgely v. Baltimore City, 119 Md. 567, 581 , 87 A. 909 (1913). To be just, the total compensation should “put the landowner in as good a pecuniary position as if no taking had occurred.” Dodson v. Anne Arundel County, supra, 294 Md. at 494 , 451 A.2d 317 . The measure of damages used to achieve this goal in a partial taking is the difference between fair market value of the whole property immediately before the taking and what is left immediately after the taking.

E.g., Oxon Hill Rec. Club v. Prince George’s County, supra, 281 Md. at 107-08 , 375 A.2d 564 ; Perkins v. State Roads Comm’n. 55 Md.App. ³⁶⁸ 639, 645, 465 A.2d 1175 (1983). Colonial Pipe Line Co. v. Gimbel, 54 Md.App. 32, 38 , 456 A.2d 946 (1983); 5 Nichols on Eminent Domain, § 16.101 at 16-5. As the statutory language suggests, the fair market value of the owner’s remaining land may depreciate due to future public use of the taken portion — termed “consequential” or “resulting” damage.

We are called upon to decide what elements a jury may consider in measuring damage to the fair market value of a remainder resulting from public use of the condemned portion. The remainder’s fair market value would be (with some qualifications) the price at which a buyer and seller would willingly and voluntarily agree to convey the land. Potomac Elec. Power Co. v. Smith, 37 Md.App. 640, 650-51 , 378 A.2d 715 (1977) quoting Md.Real Property Code Ann. § 12-105(b) (1981 repl. vol.).

Thus, generally speaking, all factors caused by the taking that would render the remaining area less valuable to a buyer should be considered. 4A Nichols on Eminent Domain, § 14.07 at 14-179, § 14.08 at 14-187, § 14.03 at 14-63. This presumptively includes all consequential damage from highway use. 5 Nichols on Eminent Domain, § 16.101 at 16-10, § 16.101[1]. Appellant State Roads Commission suggests though that this measure of damages should be further qualified to exclude consequential damages that are a normal incident of the public project experienced by the public generally — e.g., aesthetic detriment. This suggested qualification, sometimes termed the “common injury rule” in those jurisdictions that apply it, is described in 4A Nichols on Eminent Domain, section 14.08 at 14-225 to -226: “[Although it has been said that all factors which would motivate a willing buyer or a willing seller must be considered, this rule has been qualified in actual practice.

Thus, it has been held that where the damage complained of is not peculiar to the land of the condemnee, but is, the fact, an injury which he suffers in common with other local landowners, there can be no recovery therefor.” ³⁶⁹ Specifically with respect to partial taking for highway construction, Nichols reiterates: “Certain types of damage caused by the laying out of a highway have been rejected as compensable elements bearing upon the depreciation in value of the remainder area. Thus, where the injury complained of is not peculiar to the tract out of which the land taken was carved, but is, in fact, an injury common to all land in the neighborhood and to the public in general it may not be considered. Increased traffic and the influx of undesirable persons have been rejected on this account.” Id. Vol. 5, § 16.101[2] at 16-13.

See, e.g., State v. McMurtrey, 300 S.W.2d 521, 527 (Mo.1957). The evident purpose of this rule is to compensate the landowner only for those damages uniquely caused by the public use of his land. In this manner, it seeks to achieve some measure of parity between treatment of those whose lands are partially taken and those whose lands are not. This is explained in 1 L. Orgel Valuation under Eminent Domain 254 (1953): “The attempt of the courts to draw this distinction is due to the fact that, with certain exceptions, an owner of property is not entitled to recover for any diminution in value which it may suffer by virtue of the construction and operation of adjacent public works where no part of his property is deemed to have been ‘taken’.[ 1 ] It would seem, therefore, to be unfair discrimination to reimburse a property owner for all similar damages done to his property simply because a portion of it, however, small, may have been condemned.

Bearing this point in mind, the courts have attempted, some of them more vigorously than others, to distinguish between damages which a particular owner has suffered because a part of his prop ³⁷⁰ erty has been taken, and damages which this same owner may have suffered along with adjacent property owners because public works, detrimental to the remainder of his property, have been located in the neighborhood. Needless to say, there are great difficulties, both practical and theoretical, in making a distinction between these two types of damages, and courts have differed not only in the manner, but also in the zeal, with which they have attempted to draw it.” To illustrate: In Dennison v. State, 22 N.Y.2d 409 , 293 N.Y.S.2d 68 , 239 N.E.2d 708 (1968), the Dennisons’ land before the taking was in a remote wooded area, entirely secluded, quiet and peaceful. This sylvan beauty and privacy were destroyed by construction of a state highway, which cut across their property within about 200 feet of their home. In measuring consequential damage to the remainder, the lower court considered the Dennisons’ loss of privacy and seclusion, the loss of view, and traffic noise, lights and odors from the highway.

Before the Court of Appeals of New York, the State argued that since an owner whose land adjoins a highway would not be entitled to damages for depreciation from nearby traffic, the Dennison’s award for consequential damage should only consist of elements peculiar to their remainder, not traffic noise suffered by the public generally. The Court affirmed the lower court’s inclusion of such ■aesthetic detriment in the measure of damages, reasoning: “The courts below did not make a separate award for damages due to noise but rather merely considered it as one factor in determining the decrease in value to the remaining property. As we view the case, it would have been practically impossible for the court to separate the noise element from the other elements which, it is conceded, were properly considered — the loss of privacy, seclusion and view. Any reduction which would be made on remand would be purely arbitrary and at best speculative.

How could it be determined which portion of the diminution in value was due to loss of privacy and view and ³⁷¹ which portion was due to noise? The State does not suggest an answer but argues steadfastly that such a determination must be made. This does not answer the question and is clearly contrary to cases in this and other jurisdictions which have recognized that, where there has been a partial taking of property of the kind present here, the noise element may be considered as one of several factors in determining consequential damages (South Buffalo Ry. Co. v. Kirkover [ 176 N.Y. 301 , 68 N.E. 366 ], supra; Shano v. Fifth Ave. & H St. Bridge Co., 189 Pa. 245 , 42 A. 128 ; Crawford v. Central Nebraska Public Power & Irrigation Dist., 154 Neb. 832 , 49 N.W.2d 682 ).

In conclusion, we would note that we are not unmindful of the State’s argument that there are certain inconveniences which property owners must endure without monetary compensation if we are to have the advantages of modern means of transportation (see e.g., Bopp v. State of New York, 19 N.Y.2d 368, 373 , 280 N.Y.S.2d 135, 139 , 227 N.E.2d 37, 40 ). In the instant case and cases of like kind, however, we believe that the practical difficulties attendant upon accepting the State’s theory of evaluating damages outweighs any benefit likely to be derived from applying it.” Id. 293 N.Y.S.2d at 71-72 , 239 N.E.2d at 711-712 . The dissent pointed out: “But traffic noise is heard by everyone within the range of sound; and since it is a consequence that one takes by choosing to live in a country which builds modern highways, with resulting economic and transportation advantages to everyone, damage ought not, as a matter of policy, be allowed in general and unlimited scale for this kind of consequence. It is not easy to support the justice of a distinction between a man from whom a small slice of land is taken for a road who may get damages for future traffic noise ³⁷² and a man who is just as near the road and suffers every bit as much damage but from whom no land is taken.

The nature of traffic noise destroys the essential element of particular unity of interrelationships between taking and consequence which until now has been a characteristic of this type of damage. The idyllic beauty of claimants’ house, wooded and landscaped property, its exotic shrubs, trees and garden will not be affected more adversely by future traffic noise than many hundreds of people owning property near the Northway from whom there has been no physical taking.” Id. at 73-74, 239 N.E.2d at 713-714 . Another example of the debate over the elements included in consequential damage is State Department of Highways v. Garrick, 242 So.2d 278 (1970) rev’d. 260 La. 340 , 256 So.2d 111 (1971). In that case, the landowners’ rental property was located in a relatively quiet residential area beside a two-lane street that carried light local traffic.

The State carved out about 550 square feet of the owner’s property to be part of a new four-lane highway, 22V2 feet from the owner’s dwelling. Defendant’s expert testified that the nature of the property had changed: “It had been suitable for family living, including small children, but due to the heavily increased traffic, noise, dust and hazard at all hours of the day and night, and the proximity of the dwelling, it was no longer suitable for such purposes.... In fact, he testified, T think the whole neighborhood has been destroyed.’ ” 242 So.2d at 279 . The intermediate court of appeals held: “The general rule that loss of market value due to the taking is recoverable is subject to the limitation that such damage must be peculiar to the subject property and not such as are suffered generally by other landowners in the area.

Inasmuch as Mr. Garrick has not shown how his property in this case has been peculiarly damaged by the in ³⁷³ creased traffic, noise and dust in ways which have not affected other property along the by-pass right-of-way, we find that the trial judge erred in concluding that the damages complained of are compensable as severance damages.” 242 So.2d at 280 . In so ruling, the intermediate court relied upon case law involving State projects beside, not on, private land. The Louisiana Supreme Court reversed in favor of Garrick, the landowner, emphasizing that when part of a private landowner’s tract is taken, he is entitled to recompense for use of that part, even if the damage suffered is not peculiar to his tract. It ruled that there was sufficient evidence of damage to Garrick’s remainder, as proven by his witness’ observations: “[T]hey saw and counted traffic, heard the noise, felt the vibrations of the heavy trucks and noted the effect on the tenants; they described the change in the character of the neighborhood.” 256 So.2d at 115 .

The dissenting justice pointed out: “The majority has made a distinction in the damages that will be paid when there is no taking, and the damages to be paid when there is the slightest partial taking, even though in fact the damages suffered in both instances may be the same in kind and in degree. No attempt has been made to justify the difference in the two situations as a matter of law or of public policy. * * * * * * For the first time in our jurisprudence, the majority here has summarily included future traffic noises as an item of severance damages. The overwhelming majority view in this country is that this is a non-compensable damage. Sackman, supra.

The dissent in Dennison v. New York, supra, which represents the majority view elsewhere — and probably the continuing majority view in New York because of the divisions and concurrences in that opinion — shows the inherent dangers under the contrary view.” Id. at 116. ³⁷⁴ As these cases demonstrate, there is no consensus on what elements should be included in the measure of consequential damages. The common injury rule, which attempts to limit includable elements of damage to the remainder to those uniquely caused by public use of the taken land, admits of three interpretations. One method would include all elements of damage to the remainder resulting from public use of the taken portion of an owner’s land, but would exclude all elements of consequential damage from use of abutting lands. 1 L. Orgel, Valuation Under Eminent Domain § 56 (1953). A second method termed the “Massachusetts 2 increased proximity rule,” would compensate the landowner for all consequential damages that the public use does to his remaining land in excess of the damage suffered if the public work had abutted his property.

Id. § 55. In this case, for example, the appellees would be compensated for incremental aesthetic damage to their remainder caused by its increased proximity of the highway, which ran across the land taken, instead of beside it. A third method, advocated by appellant, would include only those damages that are different in kind, not degree, from those suffered by abutting landowners. Citing out-of-state decisions as persuasive authority, appellant argues that such factors as noise and dust, which are a normal incident of a highway, experienced by the general public, should be categorically excluded from consideration.

See State v. Blobeck Inv. Co., 233 Mo.App. 858 , 110 S.W.2d 860 (1937); State v. Stoddard Gin Co., 62 S.W.2d 940 (Mo.App.1933); Dept. of Public Works & Bldgs. v. Bloomer, 28 Ill.2d 267 , 191 N.E.2d 245, 249 (1963). It argues that since section 12-104(b) of