The STATE of Delaware, upon the Relation of Hugh R. SHARP, Jr., J. Draper Brown, Jr., Benjamin F. Shaw, 11, J. Gordon Smith, William P. Richardson, Frank R. Grier and Dallas D. Culver, constituting the State Highway Department of the State of Delaware, Appellant, Plaintiff Below,
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, Appellee, Defendant Below.
Condemnation proceeding by State Highway Department. The Superior Court, New Castle County, 110 A.2d 1, denied right to condemn, and Department appealed. The Supreme Court, Bramhall, J., held that evidence sustained findings that there was no present need for most of the land taken, that the need for a four-lane highway, for which land was taken, had not been established, and that Highway Department had no definite plans relating to construction of four-lane highway at any time in foreseeable future.
Appeal from judgment of the Superior Court of New Castle County denying the right of the State Highway Department to take certain real property of the defendants under the power of eminent domain. Affirmed.
Donald W. Booker, Wilmington, for appellant.
James R. Morford and George L. Sands, of the firm of Morford & Bennethum, Wilmington, for appellee.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
The pertinent facts are as follows: Defendants are the owners of a triangular tract of land in Christiana Hundred, New Castle County, Delaware, bounded by three highways: on the east by Centre Road, or Route 141; on the south by Centerville Road; and on the north by the Robert Kirkwood Highway, also known as the Capitol Trail or U.S. Route 2. The State Highway Department (hereafter ‘ Department’ ), has begun the improvement of both Centre Road and Centerville Road at a point adjoining the triangular piece of land belonging to defendants. The Department has designated a right-of-way on Centerville Road 100 feet wide, or 50 feet on each side of the present center line of the existing road. Since 20 feet of this 50 feet is already being used, the additional amount of land to be acquired under these proceedings would be approximately 30 feet. The improved road will consist of two paved lanes,-each of the width of 12 feet,-the center of the 24 foot pavement being also the center of the present highway. The title of defendants, as is the case of most [49 Del. 176] properties situate on this road, is to the middle of the existing road. The present right-of-way for Centerville Road is 40 feet, of which 18 feet is presently paved.
In the court below defendants denied the Department's right to take the land in question, on the grounds that the entire condemnation procedure as provided in 10 Del.C.1953, Chapter 61, was unconstitutional, and, that the taking of defendants' land was excessive and not within the authority of the Department as provided in 17 Del.C.1953, Chapter 1. The court below, 110 A.2d 1, in its opinion held that 10 Del.C.1953, Chapter 61, was constitutional, and that the condemnation of the strip of land along the Centre Road was proper. It determined, however, that the attempt by the Department to take the strip of land on Centerville Road and the land at the apex of the triangle on Centerville Road and Centre Road constituted an excessive taking under the powers given to the Department by 17 Del.C.1953, Chapter 1. The Department elected not to amend its petition to conform to the court's decision, and the court therefore ordered that the complaint be dismissed.
An appeal was taken by the Department from the order of the court below. No appeal was taken by defendants from the order of the court below holding that the condemnation procedure as set forth in 10 Del.C.1953, Chapter 61, was constitutional. We do not therefore reach the latter question in this appeal.
Two questions are presented: (1) Is the question as to the necessity for taking land and the quantity thereof by condemnation a judicial or legislative question? (2) Did the court below err in deciding that there was no necessity for taking a part of the land in question and that the taking of this land in contemplation of a future need was improper?
1. Is the question as to the necessity for taking land and the quantity thereof by condemnation a judicial or a legislative question?
[49 Del. 177] The Department seeks to obtain a right-of-way for highway purposes through the exercise of the power of eminent domain. Its right to proceed is predicated upon the authority conferred by 17 Del.C.1953, ...