State by Lord v. Pearson, 38072

• Decision Date: 28 July 1961
• Docket Number: No. 38072,38072
• Citation: 110 N.W.2d 206,260 Minn. 477
• Court: Minnesota Supreme Court
• Parties: STATE of Minnesota by Miles LORD, its Attorney General, Respondent, v. Axel R. PEARSON et al., Respondents-below, Coffman Realty Company, Appellant.

Page 206

110 N.W.2d 206

260 Minn. 477

STATE of Minnesota by Miles LORD, its Attorney General, Respondent, v. Axel R. PEARSON et al., Respondents-below, Coffman Realty Company, Appellant.

No. 38072.

Supreme Court of Minnesota.

July 28, 1961.

Syllabus by the Court

1. Since the enactment of Minn.St. 117.20, subd. 8(c), in 1959 it has been open to both sides in a condemnation action to call in one or more of the court-appointed commissioners to testify as to the amount of the award of the commissioners. Since that privilege was open to both sides in an adverse proceeding, the privilege of cross-examination is likewise open as in the case of any other adverse witness. The court below was within the reasonable bounds of its discretion in allowing the scope of cross-examination which it did.

2. In determining the value of land taken for highway purposes juries are not limited to the knowledge which they acquire from the evidence adduced at the trial. They may rely in part upon the evidence of their own senses and upon their general knowledge and experience. The opinions of experts called to testify as to value are merely advisory and the jury is not bound by the amounts stated by such experts.

3. Under the general rules of cross-examination an expert may be asked any question the answer to which might tend to qualify, explain, or render improbable the opinion expressed on direct examination. If an expert's opinion has been properly received, cross-examination is permitted for purposes of testing the weight of his testimony. Thus, a fact germane to an inquiry, whether the subject of testimony or otherwise, may in the sound discretion of the trial court be used for testing an expert on cross-examination.

4. After filing of an appeal from the commissioners' report in an eminent domain proceeding, it becomes a judicial proceeding and the Rules of Civil Procedure thereafter apply.

5. Since there is nothing ambiguous about § 117.20, subd. 8(c), demanding efforts from this court to construe its meaning, the amendment must, we think, be interpreted in the light of, and considering, Minnesota law and practice as it existed immediately prior to its passage and in connection with the other provisions of Minn.St. c. 117. The law is specific in stating that the party calling a commissioner calls him as that party's own witness. To presume that the legislature intended to abrogate basic rights of parties to the cross-examination of an adverse witness in a trial de novo, by the enactment in question, would result in an absurdity, a result to be avoided if the language used will reason ably bear any other construction.

6. The latitude of the trial court permitted in the cross-examination of the court-appointed commissioner called to testify, was within the discretion of the trial court.

7. When the record is viewed as a whole, it becomes clear that the issues herein were for the jury. The record does not establish that the appellant's evidence preponderated. The jury had a right to and did adopt the opinions of the state's witnesses. There is ample testimony to support the verdict of the jury.

E. E. Ranta, A. H. Michals and Robert L. Madsen, Minneapolis, for appellant.

Walter F. Mondale, Atty. Gen., Rolf O. Slen, Deputy, Jerome F. Chapman, Special Asst. Atty. Gen., for respondent.

NELSON, Justice.

The State of Minnesota by its attorney general commenced this condemnation proceeding against the Coffman Realty Company and several other respondents to acquire certain lands for trunk highway purposes. Court-appointed commissioners filed a report awarding damages of $32,500 to said company, and appeals were taken therefrom to the district court both by the state and the company.

After a trial and a jury verdict of $13,000, the company moved for a new trial upon the following grounds:

'1. The Court erred in allowing the petitioner to cross-examine the Court appointed Commissioner Philip C. Smaby, and such cross examination is contrary to law.

'2. The verdict rendered is not justified by the evidence, and the damages rendered therein are insufficient.'

On appeal to this court from a denial of that motion, Coffman Realty Company makes the following assignment of errors:

'1. The trial court erred in permitting cross examination of Philip C. Smaby, one of the commissioners, on the reasons for the award after he testified only as to the amount of the award * * *.

'2. The court erred in denying appellant's motion for a new trial based on the prejudice suffered by allowing the cross examination of Mr. Smaby and on the insufficiency of the evidence to support the verdict.'

The trunk highway section involved here was first opened to public travel September 15, 1959, approximately 6 months after the date of the taking in this proceeding. The area of the tract owned by appellant was 6.70 acres. After the taking of 1.32 acres from the west side of it, the area was reduced to 5.38 acres. The area taken consisted of a long, narrow triangular-shaped strip with its long dimension running north and south and the point thereof pointing approximately due north, its dimensions being about 95 feet along West 82nd Street and 890 feet north and south.

At the trial in district court, appellant presented two witnesses who testified to the amount of damage caused by the taking. William D. Coffman, president of Coffman Realty Company testified that the highest and best use of his property was for commercial use. He stated that the value of the property before the taking was $116,363.85 and that the value of the 5.38 acres remaining immediately after the taking was $69,038.85, with resultant damages of $47,325. It was brought out on cross-examination that one of his proposals for apartment buildings was a use for which the land had not been zoned at the time of the taking.

Philip C. Smaby, president of Bermel-Smaby Realty, Inc., and a licensed real estate broker and member of the Minneapolis Board of Realtors, testified as to his experience in doing appraisal work for landowners, corporations, and private individuals. He had viewed the premises here as a court-appointed commissioner, and on direct examination he testified that the award represented the damage for the land taken and the injury involved to the remaining property. On cross-examination he testified that the best use that the property could be put to was as commercial property; that in his opinion the damages were in the sum of $32,500; that the value immediately prior to the taking was $82,000 and that the value immediately after the taking was $49,500; that the owner lost a filling station site plus the loss of some commercial land. He also testified that immediately after the taking the property was still commercially zoned which would make it availble for a filling station on the property not taken.

Howard Lawrence, a real estate appraiser by profession, testified for the state that the highest and best use of the property before taking as well as after taking was for purposes compatible with the commercial zoning in effect. He testified that he could visualize a service station at the 82nd Street corner and other commercial uses before the taking and the same uses were the same highest and best uses after the taking as before the taking. He stated that the taking did not result in any decrease in value of the remaining commercially zoned property on a square foot basis; that the value of the property before the taking was $57,000, based upon a value of $8,500 an acre for 6.7 acres; and that after the taking the value of the property was $46,000, based upon $8,500 per acre for the 5.38 remaining acres; and that in his opinion the damages resulting from the taking were $11,000.

Lawrence testified that he appraised the property not by appraising the part taken but by the differences in his estimates of the market values of the whole before the taking and of the remainder after the taking; that the property after taking is still suitable and adaptable in its southwest corner for an equally valuable and useful service station site; that the property had one station site before the taking and that it still has one station site after the taking; that there never would be room for two filling stations at the same time, side by side or otherwise, on this land in his judgment.

C. Elmer Keefe, called by the state, testified that there was one location, on the corner of 82nd Street and the freeway, which may have been desirable for a filling station before the taking but that after the taking there was likewise a filling station site just as good at the same intersection; that he was sure that two filling station sites at the same corner could not make a living. He also testified that in his opinion the market value immediately prior to the taking of the property was $43,500; that the market value of the remaining property immediately after the taking was $35,000; and that the damages resulting from the taking were $8,500. He testified that in his opinion there was no decrease in the unit value of the property from the taking.

Appellant contends that the expert opinions provided by the state in condemnation proceedings in recent years have been notoriously low; that when these opinions are so low as to be less than one-third of the award made by the disinterested and impartial commissioners they are so obviously biased and wrong that they should be held to be insufficient to support a verdict.

The questions involved on this appeal are: (1) Did the legislature by its 1959 enactment of Minn.St. 117.20, subd. 8(c), limit an adverse party's right to cross-examine a condemnation commissioner when called by one of the parties as its witness at the trial on appeal from the commissioners' award of damages? (2) Is the verdict justified by the evidence?

1. Prior to the enactment of § 117.20, subd. 8(c), the general practice was to hold an award of the commissioners inadmissible....