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Brinsfield v. Mayor and City Council of Baltimore

Decided: July 20, 1964.

BRINSFIELD ET UX.
v.
MAYOR AND CITY COUNCIL OF BALTIMORE



Appeal from the Superior Court of Baltimore City (FOSTER, J.).

The cause was argued before Brune, C.J., and Hammond, Prescott and Horney, JJ., and Rutledge, J., Associate Judge of the Fourth Judicial Circuit, specially assigned.

Rutledge

RUTLEDGE, J., by special assignment, delivered the opinion of the Court.

This appeal is taken from a judgment of condemnation absolute upon an inquisition returned by a jury assessing damages in the amount of Sixteen Thousand Five Hundred ($16,500) Dollars, as a result of the taking of real property of the appellants by the appellee. It was conceded that the taking was one of public necessity.

The property condemned is located at 209-211 McMechen Street in Baltimore, Maryland. Mr. and Mrs. Harley P. Brinsfield, the owners, acquired the property in 1951. The improvements consist of a two-story building and basement seventy years old. The first floor was used as a retail outlet for the owners' business, the second floor as an office in conjunction with their business, and the basement for the storage and processing of food. The retail store contains 770 square feet. The property occupies the entire lot which has a frontage of thirty-five feet on McMechen Street and a depth of twenty-two feet. The block in which the property is located is zoned commercial, and that classification extends to the blocks on either side.

The section where the property is located was once a fine residential one, but over the years it deteriorated and fine homes were converted into apartments and rooming houses, and there came a great influx of persons in the lower income groups causing overcrowding and disrepair. In 1957 the city determined it to be a slum area and that it should be cleared and redeveloped. As a result of such a determination, this condemnation suit was instituted.

At the time the Brinsfields acquired the property in 1951, there was a heavy concentration of population in the neighborhood. They started a business of a carry-out sandwich shop

featuring several varieties of the now well-known "submarine" sandwiches under the name of "Harley's". They advertised widely by radio until the store became, according to its owners, "the most famous sandwich store in the United States." The business prospered, and the Brinsfields established a chain of sixteen sandwich shops. This store on McMechen Street remained the most prosperous one of the chain until the exodus caused by effects of the condemnation in the neighborhood began to take important effect upon the business.

Two real estate appraisers testified for the plaintiff-appellee. One said that in his opinion the property has a fair market value of $14,400.00 and the other said $16,500.00. One appraiser for the defendant-appellant said the fair market value was $45,000.00 and another said it was $49,000.00. The jury in its inquisition assessed the damages at $16,500.00.

The trial court permitted the real estate appraisers to testify as to rental values of similar properties, and to capitalize the fair rental value of the property to arrive at the fair market value. He allowed the appellants' appraisers to give their opinions of the fair market value of the property based in part on consideration of dollar volume of business, or gross sales, but refused to permit them on direct examination to give the percentage factor used and the amount of the gross sales. The percentage figure of 5% did, however, get into evidence despite the trial court's ruling.

In their appeal the appellants present four questions:

I. Did the Court err in refusing to permit the Appellants' appraisers to testify as to the dollar volume of the business conducted upon the condemned premises, and to the percentage factor employed by them to compute the fair rental value of the subject property?

II. Did the Court err by permitting testimony of the amounts of the rentals of neighboring properties?

III. Did the Court err in its instructions to the jury to the effect that it was to exclude any increment in value caused by the public project for ...


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