Opinion
Appeal No. 01-A-01-9505-CV-00199.
October 19, 1999.
Appeal From The Circuit Court Of Putnam County At Cookeville, Tennessee, Honorable John Maddux, Judge, Putnam Circuit No. N.J. 4666.
EVERETT H. FALK, Attorney For Plaintiff/appellant.
Peter H. Curry, TUKE, YOPP SWEENEY, Attorney For Defendants/appellees.
AFFIRMED AND REMANDED
CONCUR: BEN H. CANTRELL, JUDGE, WILLIAM C. KOCH, JR., JUDGE
OPINION
The City of Cookeville has appealed from a non-jury judgment awarding the owners $54,000 for the taking of .623 acres for the construction of a street. The issues on appeal relate to the proper measure of incidental damages to the remainder of the tract and the preponderance of the evidence as to the amount of incidental damages awarded.
The appellees were the owners of an "L" shaped tract of 7.2 acres. A 5.21 acre portion of the tract fronted on U.S. Highway 70 and was improved with commercial structures. The remaining 1.99 acres was unimproved and had access to C.C. Camp Road. The .623 acres taken by the City was a part of the unimproved 1.99 acres. The taking eliminated access to C.C. Camp Road, but the residue fronted on the new street constructed by the City. However, because of difference in the level of the street and the residue, a ramp or ramps would be required for access, and such ramp or ramps were not constructed by the City.
The Trial Court awarded the owners $19,000 as the value of the .623 acres taken. This finding is not challenged on appeal.
The City does challenge the $35,000 awarded as incidental damage to the residue not taken. The evidence is mixed as to the amount of residue which suffered recoverable incidental damages, that is, some evidence relates to incidental damages to the residue of the entire 7.2 acre tract, and some evidence relates to incidental damages only to the residue of the 1.99 acres unimproved section.
In 1991, prior to the taking, the owners obtained from City authorities approval for developing the undeveloped 1.99 acres tract and began preparing the tract for construction of a warehouse thereon. The partial frustration of this planned construction constitutes one of the bases of the owner's claim for incidental damages.
It is uncontroverted that, prior to the taking, the 1.99 acre tract was adequate for the construction of a warehouse containing a floorspace of 22,000 to 29,313 square feet: and that, after the taking, the residue of 1,367 would accommodate a building containing 7,800 to 8,000 square feet less floor space.
Lamar Thomas testified for the owners that the value of the 1.99 acres was $35,000 per acre; that the fair market value of the .623 acres taken was $22,000 and that incidental damages to the remaining 1.367 acres was $10,500. He also testified that if a 22,000 square foot proposed warehouse was reduced to a 14,000 square foot warehouse because of the taking, the present value of the lost income was $35,000.
One of the owners, an experienced contractor, testified that two ramps would be required to provide access from the 1.367 residue to the new street and that the costs of constructing such ramps would be $30,000 to $37,000.
For the City, the witness Brockman testified that the value of the .623 acres taken was $12,000 and that there was no incidental damage to the remainder of 1.367 acres.
For the City, the witness, Bailey, testified that the value of the .623 acres taken was $12,500 and that the incidental damage to the remainder of the 7.2 acre tract, zero.
In its oral pronouncement, the Trial Court found the value of the .623 acres taken to be $19,000 and incidental damages to the remainder to be $41,500. The Court did not specify whether the award of incidental damages awarded were in relation to the residue of the smaller, undeveloped 1.99 portion or the residue of the entire 7.2 acre tract both developed and undeveloped.
The final, amended judgment reduced incidental damages to $35,000 which, with the $19,000 for the land taken, amounted to a total of $54,000, which was reduced to $41,500 by the $12,500 deposited by the City with the petition.
The first issue presented by the City relates to the preponderance of the evidence, in respect to incidental damages. No question is made regarding evidence supporting the $19,000 award for property taken.
As above stated, the owner's witness valued the 1.99 acres at $35,000 per acre which would amount to $69,650 for the entire 1.99 acres. He valued the .623 acres taken at $22,000 which is approximately .623 of $35,000. He fixed the incidental damages to the remainder of the 1.99 acres at $10,500. Thus, according to his testimony, the $69,650 value of the 1.99 acres was reduced $22,000 by the loss of .623 acres and $10,500 by incidental damage to the residue, leaving a residue worth of $37,150. His testimony regarding loss of revenue because of the reduced size of a projected warehouse was admissible as a circumstance, but was not the measure of damages and its effect was limited by his testimony as to the market value of the land before and after the taking.
A witness in an eminent domain proceeding will not be allowed to state the value or loss of value of the property for a specific purpose in order to protect from an overemphasis on the particular use stated. Davidson County Board of Education v. First American National Bank, 202 Tenn. 9, 301 S.W.2d 905 (1957).
However, a witness may discuss the problems of constructing a commercial building on property that remains after a partial taking so long as it is an explanation of the evaluation process. State v. Parkes, Tenn. App. 1977, 557 S.W.2d 504.
In the present case, the witness did not state any value or loss of value due to the projected loss of rent.
The Trial Judge is allowed broad discretion in admission of evidence respecting the value of land taken in condemnation proceedings and incidental damages to part not taken. State v. Roscoe, 181 Tenn. 43, 178 S.W.2d 178.
There was other evidence of incidental damage. One of the owners, Jack Stites, without objection, testified that, by removing access to a public road, the taking required $30,000 to $36,000 for constructing ramps to provide access to the new public road. The City argues that the proposed ramps were unnecessary because the City provided a driveway from the new street to the developed portion of the 7.2 acre tract. This argument is inconclusive because before the taking, both the developed portion and the undeveloped portion of the 7.2 acres had separate access to public roads. The developed portion had convenient access to U.S. Highway 70, and the undeveloped portion had convenient access to C.C. Camp Road.
As stated above, the City appraisers simply denied that any incidental damages resulted from the taking.
There is evidence from which the finder of fact might have found incidental damages in any amount from zero to $36,000.
In his oral decision from the bench, the Trial Judge stated:
. . . The Court finds, as to this particular case, that Mr. Jack Stites was a very credible witness. The Court further finds that Mr. Thomas was a very credible witness. The Court finds that Mr. Brockman was a good witness, but the Court is not as persuaded by Mr. Brockman's testimony as it is by Mr. Thomas's testimony and the court finds that Mr. Bailey's testimony was at one point confused and the Court is not necessarily persuaded by his testimony. . . .
. . . .
Now, the Court having heard all the testimony in this case in regard to fair cash market value and taking into consideration the credibility of the witnesses as the Court has indicated, the Court is of the opinion that the fair cash market value of the property taken is $19,000 and the Court orders that the order reflect that the value of the fair cash market value of the property taken is 0.632 acres is valued in the amount of $19,000.
. . . .
. . . [T]he Court is of the opinion that there will be required to make this property useful for one of the purposes for which it can be used, that of placing a warehouse on it. That it's going to require the building of some ramps and access to the property across the ditch line which is significant there and it will require some type of tile or pipe and also fill to build the ramps which are going to be required there.
In addition the Court listened closely and considered the question of whether or not this item of incidental damages advanced by the landowner was speculative or not as to the alleged damage to any, a warehouse that was planned to be built on this property. The Court looked at that situation closely and the Court after examining Exhibit No. 9, which is a plat that was presented to the City on June the 25th of 1991, which indicated that the landowners were going to build a warehouse on this property at some time in the future and it gave the size of this warehouse and it also showed the way in which the landowners were going to access that warehouse. The landowners in fact advised the City on this date, June the 25th, 1991, of their plans and what they were going to do. It was because they were being asked to do that to give the City notice of what they were going to do with the entire tract, but it was apparent from that exhibit and from the testimony that the Court heard in this case that the landowners did in fact plan to build that warehouse and to continue developing the property as they had in the past. And of course when you contrast that date of Exhibit No. 9, June the 25th, 1991, to the date of take in this case which is February the 9th, 1993, then it becomes apparent to the Court that this is not a speculative item of damage being requested by the landowners, but this is in fact something which is, that the Court takes into consideration and takes into consideration because of the nature of the proof and the credibility of the witnesses as the Court indicated previously.
The Court looking at all of the elements of damages in this case and recognizing that the amount of $10,500 which was one of the alternative amounts that was advanced by the landowner is not the appropriate amount in this case and the Court does not, the Court is not going to order the $10,500, I'm sorry, in incidental damages, but the Court is going to in the alternative award the landowners in this case the amount of $41,500 in incidental damages in this case.
. . . .
The Court is of the opinion that based on the credibility of the witnesses and because the fact that Mr. Bailey is the one that advanced this theory of incidental benefits, the Court is not persuaded by the proof in this case that there aren't any incidental benefits accruing to the landowners. The Court in this case finds that there are no incidental benefits . . ..
On appeal from a judgment rendered by court without a jury, any conflict in testimony requiring a determination of the credibility of witnesses is for the Trial Court and is accorded great weight by the appellate court, unless other real evidence compels a contrary conclusion. State, ex rel Balsinger v. Town of Madisonville, 222 Tenn. 272, 435 S.W.2d 803 1968; McReynolds v. Cherokee Ins. Co., Tenn. App. 1991, 815 S.W.2d 208.
T.C.A. Section 29-16-114 requires that owners be compensated to the full extent of the value of the land taken without diminution for incidental benefits to the residue; however, in allowing damages to the residue incidental benefits may be considered. There is no evidence of any increase in value of the land from the construction of the new street.
The compensation recoverable by the landowner as incidental and consequential damages for the diminution of the value of the residue of his land after the condemnation of a part includes anything that would injure the market value of the remaining land in an appreciable degree that is capable of ascertainment in dollars and cents. Lewisburg N.R.R. v. Hinds, 134 Tenn. 293, 183 S.W. 985, 1916 E. L.R.A. 420 (1915).
The City argues that both of the two proposed ramps were not necessary. However, the owner explained the necessity of two ramps to the satisfaction of the Trial Judge and this Court.
The record does not demonstrate that the Trial Judge improperly accepted the projected loss of rental as the measure of incidental damages. There was evidence to support his conclusion on other grounds.
Considering the superior opportunity of the Trial Judge to evaluate the weight and credibility of the testimony, this Court cannot say that the evidence preponderates against the findings of the Trial Court.
The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the appellant. The cause is remanded to the Trial Court for any necessary further proceedings.
Affirmed and Remanded.
_____________________________________ HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________________ BEN H. CANTRELL, JUDGE
_____________________________________ WILLIAM C. KOCH, JR., JUDGE