State v. Parkes

557 S.W.2d 504, 1977 Tenn. App. LEXIS 318
CourtCourt of Appeals of Tennessee
DecidedJanuary 31, 1977
StatusPublished
Cited by12 cases

This text of 557 S.W.2d 504 (State v. Parkes) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Parkes, 557 S.W.2d 504, 1977 Tenn. App. LEXIS 318 (Tenn. Ct. App. 1977).

Opinion

OPINION

DROWOTA, Judge.

This is an appeal by the State of Tennessee from the jury verdict and judgment in an eminent domain proceeding, in which defendant landowners were awarded $450.00 for the property taken and $11,-200.00 in incidental damages. The State objects to certain testimony introduced at trial by defendants, and asserts that the verdict is not supported by admissible evidence.

On November 4, 1974, the Department of Transportation of the State of Tennessee filed a petition for condemnation in the Circuit Court of Lawrence County. The petition prayed for condemnation of a triangular piece of land located at the southeast corner of a lot which is located at the northwest corner of the intersection of Military Street and Gaines Street in the City of Lawrenceburg. The total area of the property taken is 121 square feet. After notice was served on the several defendants, who are all holders of interests in Parkes Motor Company, which owned the property, an order condemning the property was entered on January 6, 1975. Defendants answered, protesting as inadequate the $415.00 compensation figure set by the State and requesting a jury trial. The trial, held November 25, 1975, resulted in a verdict and judgment awarding defendants a total of $11,650.00.’ The State has appealed.

At trial, the State first showed that the project for which the property was taken involved widening the street by rounding off the corner, as well as constructing curbing along a large part of defendants’ property on each of the two streets. Two entrance ramps were to be provided to defendants' lot. The lot contained a gas station, abandoned at the time of the taking, in this corner portion, as well as two other [507]*507buildings located farther back from the corner.

James F. Parkes, president of Parkes Motor Co., Inc., and one of the defendants, after noting that the company had conveyed the lot in question since the condemnation date, testified that the best use of the property would be for commercial development, such as an office or bank building. Parkes valued the piece of land taken at $428.50. He then discussed incidental damages to the remainder of the lot, basing his estimate on two elements. First, he noted that if a building were placed on the property after the taking, it would have to be either set in about eight feet from the street on each side or built with a diagonal or other irregularly shaped front in order to avoid encroaching on the corner taken by the State. If a diagonal front were built, the area lost to the building would mean a loss in the rent-producing potential of the property and a corresponding depreciation of its value, estimated at $12,000.00 by Parkes. Parkes then discussed the added cost of constructing a building with a diagonal front on the lot, estimating it at $3,500.00. Thus, Parkes’s testimony was that the taking caused $15,500.00 in incidental damages, which, when added to his figure of $423.50 for value of the land taken, would produce a total award of $15,923.50. He concluded that the property’s original value of $70,300.00 had been reduced by this figure as a result of the taking.

Terry Evans, a real estate broker and appraiser, then testified for defendants. He also thought the best use of the property was as “commercial rental property” in the form of a building of some kind. He valued the property in question, as of the date of taking, at $56,734.00. Due to the necessity of erecting either a square building set in from the street or a building with a diagonal front, he assessed the value of the property remaining after the taking at $42,570.00 for a total loss of $14,164.00, which included $500.00 as value of the land taken. Evans said he used loss of rental value in arriving at his valuation figures.

The State’s valuation evidence consisted of the testimony of Norman Hall, a real estate appraiser who had appraised the property in March of 1974 and updated his appraisal to the time of the taking. He put the value of the property taken at $450.00, and explained that his figure was based an on examination of comparable sales in the area. The only possible damage to the remaining land found by Hall was the expense of relocating the gas pumps and “redesigning the site so it could be put back in operation as a service station if so desired,” which he fixed at $11,200.00. The State then concluded with the testimony of W. S. McCrary, an Exxon marketing representative, who explained that the State had paid Exxon $8,400.00 to remove the service station’s gasoline pumps, which belonged to Exxon, from the property and to repave the ground from which the pumps were removed.

Since the dispute in this case does not involve the $450.00 value placed by the jury on the land taken, our discussion will relate only to incidental damages.

Tennessee Code Annotated § 23-1414 provides for award of incidental damages in eminent domain proceedings. These damages include “those relating to the part of the land remaining to a landowner after a part of his land has been taken,” as well as the expenses he incurs in moving his property, for which the statute expressly provides. Knoxville Housing Authority, Inc. v. Bush, 56 Tenn.App. 464, 470, 408 S.W.2d 407, 410 (1966). Just as fair market value is the standard for measuring the value of property actually taken and for fixing compensation therefor, decline in fair market value is the test of compensation for damage to land remaining after a partial taking. City of Memphis v. Hood, 208 Tenn. 319, 345 S.W.2d 887 (1961). In applying the fair market value standard in general, the jury should consider all uses to which the property might reasonably be put as of the time of the taking. McKinney v. City of Nashville, 102 Tenn. 131, 52 S.W. 781 (1899); Alloway v. City of Nashville, 88 Tenn. 510, 13 S.W. 123 (1890).

[508]*508Although all uses of the property should be considered in such a case, we agree with the State that many uses for which a landowner might contend are “speculative” and “potential” as to his particular property, and that he should not be permitted to present evidence that strays to a consideration of such unlikely contingencies. See L. Orgel, Valuation Under the Law of Eminent Domain (2nd ed. 1953), § 31. But we do not agree that the testimony of Parkes and Evans in the case at bar was “speculative” in this sense simply because it discussed the possible use of defendants’ property for construction of a building for commercial rental purposes. The type of testimony to be avoided is that which discusses uses that are unfeasible or remote in likelihood or in time, given the circumstances and location of the property. In this case, the record shows that the property is located at a busy intersection which contains businesses built out to the street on other corners. There was no evidence to show that a commercial building on defendants’ property was unfeasible for any reason, such as an overabundance of similar uses in the community. The testimony of Parkes and Evans itself was limited to discussion of a one or two story building, which would be not at all unreasonable at the present time in the area in question. We are thus unable to find that the trial judge was in error in overruling the State’s objection to this testimony as speculative.

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Cite This Page — Counsel Stack

Bluebook (online)
557 S.W.2d 504, 1977 Tenn. App. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-parkes-tennctapp-1977.