State Roads Commission v. Hance

Oppenheimer, J., delivered the opinion of the Court. This appeal involves the admissibility of evidence in a condemnation proceeding. In August 1964, the State Roads Commission (the Commission) filed a petition in the Circuit Court for Calvert County to condemn .28 acres of the land of Mr. and Mrs. Hance, the appellees (the Hances). The condemnation was in connection with the widening and improvement of Plum Point Road, on which the Hances’ one acre property abutted.

The Hances had purchased the property for a residence in I960; they began construction of the house in 1961 and occupied it in December 1962, although it was not completed. The house was located about 125 feet from the original right-of-way line of Plum Point Road, and its view from the road was obscured by a dirt bank about nine feet in height located near the edge of the road. The house was constructed at the same grade as ¹³⁹ the original Plum Point Road. The Commission lowered the grade of Plum Point Road about 12 feet and widened the road so that the Hances’ house is now only 77 feet from the right-of-way.

In the court below, Mr. Hance testified his plans for the house included the building of a driveway in the shape of a horseshoe around the house with entrances on the Plum Point Road; in 1963, he learned of the proposed taking and the driveway was not built. Over objection, the court admitted a rough sketch of the proposed driveway in relation to the house. Mr. Hance was of the opinion the damage to his property caused by the taking of part of it was about $6500. His expert, Mr. Vaughn, testified to a damage of about $5000, including $250 for the actual taking.

In Mr. Vaughn’s cross-examination, he was shown a photograph of the property before the taking, which he said accurately portrayed it as it existed before the construction of the house, as to grade only. An objection to the introduction of the photograph was sustained. The State’s right-of-way agent, Mr. Kenchington, testified that, in his opinion, the actual damage to the property by reason of the taking of about one-quarter of the land was $250 and that there was no consequential damage to the remainder. The inquisition of the jury assessed the damages at $2750, and judgment was entered for the Hances in that amount.

The Commission’s appeal is based on the admission of the sketch and the exclusion of the photograph. I When there has been a partial taking, consequential damages to the remainder of the tract may be considered in the assessment of the award. Code (1965 Cum. Supp.), Art. 33A, § 5(b); State Roads Comm’n v. Adams, 238 Md. 371, 373-74 , 209 A. 2d 247 (1965).

When the whole tract is taken, in assessing the damages, the jury shall consider what would have been its value if employed for the most profitable use for which they may find it could have been employed, whether it has in fact been applied to such use or not. Bonaparte v. Mayor & City Council of Baltimore, 131 Md. 80, 82-83 , 101 Atl. 594 (1917). In Bonaparte , the evidence showed the building on the tract which was ¹⁴⁰ taken was specially adapted for use as an apartment house, and that its availability for such use added to its market value, even though it was being used at the time of taking only for a single residence. It was held that a prayer offered by the property owner instructing the jury to consider this element of value was improperly refused.

In State Roads Comm'n v. Warriner, 211 Md. 480, 484-87 , 128 A. 2d 248 (1957), Chief Judge Bruñe, for the Court, held that evidence of a reasonable probability of a change in zoning classification within a reasonable time may properly be admitted and its influence upon market value at the time of taking may be taken into account. This rule has been followed in later cases. State Roads Comm’n v. Orleans, 239 Md. 368, 379 , 211 A. 2d 715 (1965). See also Hutchison v. Baltimore Gas & Elec.

Co., 241 Md. 329, 332 , 216 A. 2d 573, 575 (1966). The reasoning of these cases applies to the admissibility of evidence of the most profitable use of the tract as a whole, if a part had not been taken, as an element of consequential damages. In this case there was evidence that the construction of the proposed driveway would have increased the market value of the tract as a whole, and that the taking of part of the property made the contemplated driveway impractical and left the house unoriented to the remainder of the site. Prior to the partial taking, the land was available for the proposed landscaping, including the driveway, as a part of the completed residence, which was the best use for the tract.

Evidence of what the completed residence would have been like had not the taking occurred was therefore relevant, if the