Winepol v. State Roads Commission

Hammond, J., delivered the opinion of the Court. Questions of evidence are presented for review in this appeal by an owner whose property was condemned by the State Roads Commission. In substance, his real complaint is the inadequacy of the jury’s inquisition. The property involved is a two-story brick building on Main Street in Salisbury.

The first floor has two separate store ²²⁹ fronts and, at times, has been used for one store and, at other times, for two stores (one operated by the owner) devoted to the selling of economy shoes and low-priced ladies’ clothing. A stairway between the store fronts leads to the second story, which is divided into four apartments containing three rooms and a complete kitchen. There are two bathrooms, each shared by the occupants of two apartments. The Commission offered three appraisers, each of whom appraised the property on the basis of its fair value, by adding to the estimated value of the land the replacement cost of the building, less depreciation.

One, in addition to charging ordinary depreciation on the building, subtracted a so-called “functional” depreciation amounting to the $2600 that had been spent in converting the second floor into apartments, since, in the opinion of the witness, the property would have been as valuable if the area had been left open for a storage space. Another of the State’s witnesses said that he did not base or test his appraisal on a capitalization of income, and the income the property could produce would not be an important factor in his evaluation. The appellant produced two experts who set the value of the property at approximately $57,700. One of these, a real estate man, testified that the stores and the second floor apartments always would have been rented at a good income.

The appellant testified that his property was worth $76,800, and that the income that it had produced over the years demonstrated that his estimate was accurate. No witness for the property owner was permitted to testify as to the actual rentals received in 1955 and 1956, the last years the property was tenanted. The trial court agreed with the Commission that evidence of rental income to be admissible would have to relate to June, 1958, the time of the taking. At that time the property was vacant because, according to the appellant, all occupants had moved out in 1956 under pressure of the State Roads Commission.

The jury’s inquisition was $35,000, several thousand less than was due the mortgagee for principal, interest and taxes advanced. There was testimony that the tenant of one of the downstairs stores had not renewed his lease at its expiration on January 1, 1956, because the State was about to take the property for road improvements. There was other testimony that ²³⁰ in August, 1956 the appellant had been summoned to the Commission’s office and told that it was going to take the property-in about six months and that it frowned on large inventories in mercantile establishments at the time of taking. The appellant said that, as a result, he closed his own store at Christmas of 1956.

It was shown that the appraisers for the Commission had visited the other tenants in the building in 1956 and had queried them as to the length of their leases, the rentals they were paying, and other pertinent data. The testimony was that it had been a matter of common knowledge since 1954 that the Commission and the City of Salisbury had entered into an agreement for the construction of the new road, which necessitated the taking, and that the work was to begin in due course. Under these circumstances we think the refusal of the court to allow the appellant to show