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More or Less, Situated in Seaford Hundred, Sussex County v. State ex rel. McConnell

Supreme Court of Delaware

November 29, 1954

9.6 ACRES OF LAND, MORE OR LESS, SITUATED IN SEAFORD HUNDRED, SUSSEX COUNTY and State of Delaware, and Victor E. Hurley, Owner, Defendant Below, Appellant,
v.
The STATE of Delaware, upon the Relation of J. H. Tyler McCONNELL, J. Gordon Smith, Benjamin F. Shaw, II, J. Draper Brown, Jr., William P. Richardson, Clayton A. Bunting, and Samuel N. Cuiver, Constituting the State Highway Department of the State of Delaware, Plaintiffs Below, Appellees.

Condemnation proceeding. Commissioners made award of compensation to landowner for land condemned for highway purposes and Superior Court, Sussex County, entered order confirming award, and property owner brought error. The Supreme Court, Wolcott, J., held that since statute required court to wait five days after commissioners make award before entering order confirming award of Commissioners in condemnation, and court made such order on following day, the order was a nullity and could not be reviewed by Supreme Court.

Remanded with directions.

Page 397

Writ of error to the Superior Court of Sussex.

Daniel J. Layton, Jr., Georgetown, Del., for appellant.

Ralph S. Baker, Georgetown, Del., for appellees.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

WOLCOTT, Justice.

Although no motion to dismiss this appeal has been filed, the fundamental question for our determination is whether or not the order appealed from is a final judgment of the Superior Court and thus subject to review by writ of error.

This is a condemnation proceeding brought by the State Highway Department pursuant to 10 Del.C. Ch. 61, against the land condemned and its owner, the appellant. At the trial of the cause the appellant called as witnesses four experts in the valuation of land who testified as to their opinions of the damages caused by the taking. The estimate of damages made by these experts ranged from a low of $15,000 to a high of $24,000. The State Highway Department called two witnesses to testify as to their opinions of the amount of damages caused by the [49 Del. 66] taking, but the trial court ruled that they failed to qualify as experts and excluded their testimony. The State Highway Department offered no other evidence upon the question of damages.

Pursuant to 10 Del.C. § 6108(d), the trial court permitted the Commissioners to view the property being condemned. The cited code section, however, while permitting a view of the property taken, provides that ‘ the view shall not be considered as evidence but only for the purpose of better understanding the evidence presented at the trial’ .

The question of the amount of damages for the taking, under appropriate instructions, was submitted to the Commissioners

Page 398

upon the record thus made. After deliberation, the Commissioners returned and announced in open court an award of $9,000 as just compensation for the taking.

On the day following the announcement of the award the trial judge in open court entered an order confirming it.[1] Shortly thereafter, on the same day, the appellant filed his motion, designated as a motion for a new trial, but obviously filed in accordance with the provisions of 10 Del.C. ยง 6108(g) to set ...


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