Opinion
43749 Record No. 770641.
January 12, 1979
Present: All the Justices.
Evidence of damage to property by future change of grade of highway speculative and inadmissable in condemnation proceeding.
Eminent Domain — Evidence of Damage by Future Change in Grade of Highway — Inadmissible as Speculative.
The Highway Commissioner took .08 acre of a .66 acre residential tract to widen a highway. The highway grade at the centerline was changed as a result of the construction but the landowners' entrance and access were not substantially altered or changed. Evidence was admitted in the condemnation proceeding that if the centerline grade was in the future extended to the boundary line the landowner would have to construct a new driveway and would require remodeling his garage for a cost of $6,718. The Commissioner's evidence established that he did not then contemplate any future changes in the grade of the right-of-way. The landowners were awarded $400 for the land taken and $6,800 as damages to the residue of the property. The Commissioner appeals.
The landowners are entitled to recover for the property taken by the Highway Commissioner and any damages they can show resulted from the construction. Nevertheless, their evidence of the effect on their property of a hypothesized future change of grade of the highway was inadmissible as remote and speculative.
Error to a judgment of the Circuit Court of Smyth County. Hon. J. Aubrey Matthews, judge presiding.
Reversed and remanded.
John S. Morris, III, Assistant Attorney General (Anthony F. Troy, Attorney General; Walter A. McFarlane, Deputy Attorney General; John S. Bundy, White, Elliot, Bundy Jones, on brief), for plaintiff in error.
(G. C. Jennings, on brief), for defendant in error.
This is an appeal by the State Highway and Transportation Commissioner of Virginia (Highway Commissioner) from a final order of the trial court in a condemnation proceeding instituted by the Highway Commissioner against Thomas A. Carter and Mary Carter (the landowners). This order confirmed the report of trial commissioners which awarded the landowners $400 as compensation for land taken and $6800 as damages to the residue of landowners' property. We awarded a writ of error to review the Highway Commissioner's claim that the trial court erred in admitting, over the Highway Commissioner's objection, some of the landowners' evidence of damages.
In order to improve, realign and reconstruct State Route 42 in Smyth County, the Highway Commissioner deemed it necessary to acquire .08 acre from the landowners' larger .66 acre residential tract. Unable to agree with the landowners on the amount of compensation and damages to which they were entitled, the Highway Commissioner filed a Certificate of Deposit with the trial court, entered into possession of the property within the new right-of-way, and proceeded to improve and to reconstruct the highway. Trial of this proceeding occurred after construction was completed.
As a result of this taking by the Highway Commissioner, the highway right-of-way line was moved to within 40 feet of landowners attached garage, which is approximately 10 feet above the centerline grade of the new road. The landowners' driveway entrance, a portion of the paved driveway, several shrubs and two outdoor light posts were located within the .08 acre taken for highway purposes. While the highway grade at the centerline of the pavement was changed as a result of the new construction, the landowners' entrance and access were not substantially altered or changed. The Highway Commissioner's evidence established that he did not then contemplate any future changes in the grade of the right-of-way adjacent to the landowners' property or in landowners' access to their property.
Despite this evidence, the trial court permitted the landowners to present evidence that their existing entrance and driveway would become unusable if the Highway Commissioner should extend the centerline grade of the new roadway to the highway boundary line adjoining landowners' property. According to the landowners' evidence, making such a change would necessitate construction of a new driveway and require remodeling the landowners' garage to change the garage entrance from the front to the side of their dwelling. The total estimated cost of such changes, as shown by landowners' evidence, amounted to $6718.
We reverse. Here the highway grade has been established and construction has been completed. The landowners are, of course, entitled to recover for the property taken and any damages which they can show resulted from that construction. But their evidence of the effect on their property of a hypothesized change of grade at some unknown future time was clearly so remote and speculative as to be inadmissible.
Reversed and remanded.