The STATE of Delaware, Upon the Relation of Hugh R. SHARP, Jr., J. Draper Brown, Jr., Benjamin F. Shaw, II, J. Gordon Smith, William P. Richardson, Frank R. Grier and Dallas D. Culver, constituting the State Highway Department of the State of Delaware, Plaintiffs,
0.62033 ACRES OF LAND IN CHRISTIANA HUNDRED, NEW CASTLE COUNTY and State of Delaware, Harvey C. Fenimore, Annie F. Fenimore, his wife, John Robinson Fenimore, Helen L. Fenimore, his wife, Thomas C. Hawke, Hilda M. Hawke, his wife, and Unknown Owners, Defendants.
Condemnation proceeding by State Highway Department. The Superior Court, Herrmann, J., held, inter alia, that portion of proposed taking would be in violation of constitutional rights of property owners because there was no necessity for such taking, and since description of property in complaint was indivisible, complaint would be dismissed, but leave to amend would be granted on proper application.
Action for condemnation. Upon the defendants' answers interposing objections and defenses to the taking of their property.
Donald W. Booker, Wilmington, for plaintiffs.
James R. Morford and George L. Sands (of Morford & Bennethum), Wilmington, for defendants.
Under the power of eminent domain conferred in 17 Del.C. § 138, the State Highway Department seeks to take certain real property owned by the defendants.
The proceeding was instituted under the condemnation procedural Statute, 10 Del.C. Ch. 61. The plaintiffs filed a complaint, made a deposit of estimated just compensation and filed a notice of intention to take possession of the property sought to be condemned. See 10 Del.C. § § 6102, 6105 and 6110. Copies of the complaint, the
certificate of deposit and the notice of intention were served upon the defendants simultaneously with the summons. See 10 Del.C. § 6106. The defendants filed answers to the complaint, pursuant to 10 Del.C. § 6107, asserting objections and defenses to the taking. Under the provisions of [49 Del. 94] 10 Del.C. § 6110, the plaintiffs sought an ex parte order granting immediate possession of the property described in the complaint. The Court declined to grant an ex parte order, in the absence of a showing of justifiable emergency, and the Court required the plaintiffs to give notice to the defendants of their intention to present an order for possession. Upon presentation of the order, after notice, the defendants opposed the entry of an order of possession upon the grounds of the objections and defenses stated in their answers, as amended. By 10 Del.C. § 6107, the Court is required to make preliminary disposition of objections and defenses to the taking.
The objections and defenses interposed by the defendants raise the following issues:
1. Is it necessary to take or use certain portions of the defendants' property for any public use or purpose within the scope of 17 Del.C. § 138?
2. Does 10 Del.C. Ch. 61 violate Art. I, § 8 of the Delaware Constitution or the due process clauses of the State and Federal Constitutions, because of failure adequately to secure just compensation to the defendants?
3. Does 10 Del.C. § 6110(a) violate the due process clauses of the State and Federal Constitutions because of failure to require notice to the defendants before entry of an order of possession?
[49 Del. 95] The defendants requested trial by petit jury of the issue of necessity for the taking. This request was denied by the Court on the ground that there is no common law or statutory basis for jury trial of any issue at this stage of a condemnation proceeding. There is strong implication in 10 Del.C. § 6107 and § 6108 that the issue of just compensation is the only issue to be decided by the commission. Moreover, it is the general rule elsewhere that the question of necessity for a taking, under the power of eminent domain, is an issue to be determined by the Court without a jury, in the absence of controlling statutory or constitutional provision. Cf. Baxter v. City of Louisville, 224 Ky. 604, 6 S.W.2d 1074, 1077; Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527, 65 A.L.R. 488; City of Eugene v. Johnson, 183 Or. 421, 192 P.2d 251, 255.
A hearing was held before the Court upon the issue of the necessity of the taking for any proper public use included within the scope of the power of eminent domain conferred by the Legislature upon the State Highway Department in 17 Del.C. § 138. The burden of proof was imposed upon the defendants in view of the presumption of regularity and the prima facie case of necessity for a public use that is presented by a condemnation proceeding instituted under our present Statute by the State ...