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New Castle County v. State ex rel. Smith

Supreme Court of Delaware

September 30, 1958

0.24148, 0.23831 AND 0.12277 ACRES OF LAND IN CHRISTIANA HUNDRED, NEW CASTLE COUNTY and State of Delaware, Harvey C. Fenimore and Annie F. Fenimore, his wife, Defendants Below, Appellants,
v.
The STATE of Delaware ex rel. J. Gordon SMITH et al., Plaintiff Below, Appellee.

[51 Del. 333] Writ of Error to the Superior Court, New Castle County.

James R. Morford, Wilmington, for appellants.

Donald W. Booker, Wilmington, for appellee.

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

WOLCOTT, Justice.

This is an appeal from a judgment of the Superior Court granting immediate possession of land sought to be condemned to

Page 389

the State Highway Department, and ordering a hearing to fix just compensation. The landowners appeal.

The action was commenced by the filing of a complaint as required by 10 Del.C. § 6102. By 10 Del.C. § 6107 the owner of the property is required by way of answer to raise any defense or objection to the taking which shall be disposed of by the court prior to a trial of the issue of just compensation.

Accordingly, the owners filed their answer interposing the defenses of lack of public necessity for the taking and the failure of the Department to comply with the statutory requirements for the exercise by it of its power of eminent domain. In addition, the answer asserted the defense of res adjudicata, based upon a judgment of the Superior Court in Civil Action No. 842, 1954, affirmed by this Court, involving the same lands in question and refusing condemnation because of lack of public necessity for the taking.

The land to be taken, described as three separate parcels by the Department, would permit the widening of Centerville Road in New Castle County where it passes along the owners' [51 Del. 334] property, and also the making of a turn area from Center Road into Centerville Road. Herewith follows a rough diagram of the roads in question, and the three parcels sought to be taken.

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With respect to Parcel 1, the owners concede the right of the State to acquire title to it since it in fact comprises part of the bed of Center Road over which there now exists a public [51 Del. 335] easement. It follows, therefore, that with respect to Parcel 1 the judgment of the Superior Court granting condemnation will be affirmed.

The real issue raised by the owners is the right of the State to acquire Parcels 2 and 3. For purposes of clarity some elaboration of the facts and circumstances leading to the ...


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