United States v. Sowards, 7767.

• Decision Date: 11 December 1964
• Docket Number: No. 7767.,7767.
• Parties: UNITED STATES of America, Appellant, v. Leland SOWARDS and Ruth Sowards, his wife, et al., Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

339 F.2d 401 (1964)

UNITED STATES of America, Appellant, v. Leland SOWARDS and Ruth Sowards, his wife, et al., Appellees.

No. 7767.

United States Court of Appeals Tenth Circuit.

December 11, 1964.

George R. Hyde, Atty., Dept. of Justice, Washington, D. C. (Ramsey Clark, Asst. Atty. Gen., Washington, D. C., William T. Thurman, U. S. Atty., Salt Lake City, Utah, and Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., with him on the brief), for appellant.

J. Lambert Gibson, of Lamoreaux & Gibson, Salt Lake City, Utah, for appellees.

Before MURRAH, Chief Judge, and PICKETT and SETH, Circuit Judges.

PICKETT, Circuit Judge.

In this condemnation proceeding, the United States acquired for public use, the "coal, coal mines and workings" in and on 18.18 acres of land in Uintah County, Utah, the surface rights of which the United States owned. The issue of just compensation for the coal interests was tried to a jury. This is an appeal from a total award of $21,000. The principal questions presented relate to the admission and rejection of evidence of expert witnesses, and prejudicial comments of the court.

The evidence is without dispute that the coal in question was of inferior quality, and that the total amount in place was approximately 41,000 tons. The mining facilities were in a dilapidated condition, and no coal had been mined on the property for about 45 years. To establish the fair market value of the property taken, the United States called as expert witnesses mining engineers with wide experience in the coal mining industry. These witnesses had investigated the coal market in the area and made inquiry of different individuals concerning the marketability of comparable coal, and the possibility of the sale of like coal deposits. Apparently the court was of the view that an expert can not elaborate on his activities during the investigation which form the basis of his opinion as an expert, and applied the strict hearsay rule.¹ As a general rule, an expert may testify as to hearsay matters, not to establish substantive facts, but for the sole purpose of giving information upon which the witness relied in reaching his conclusion as to value. H. & H. Supply Co. v. United States, 10 Cir., 194 F.2d 553. When evidence is given for this purpose, the jury should be so instructed. The admission of this type of evidence was recently discussed by this court in United States v. Featherston, 10 Cir., 325 F.2d 539, at 542-543, where it was said:

"Although the best evidence and hearsay rules are important, they should not be applied to prevent an expert giving in a reasonable way the basis for his opinion. The fear of trial prolongation by exploration of collateral issues does not impress us. Within reasonable bounds, the expert may testify to the facts upon which his opinion of value is based and the court in the exercise of its sound discretion can assure that the evidence does not go afield." (Footnote omitted)

In condemnation cases, market value is usually established by sales of like property. It does not follow, however, that the owner is precluded from proving value when there have been no comparable sales. In such cases resort may be had to best available data which, even though speculative, under some circumstances may be sufficient to allow a jury to make an informed estimate of value. United States v. Miller, 317 U. S. 369, 63 S.Ct. 276, 87 L.Ed. 336, rehearing denied 318 U.S. 798, 63 S.Ct. 557, 87 L.Ed. 1162; United States v. Silver Queen Mining Co., 10 Cir., 285 F. 2d 506; Harwell v. United States, 10 Cir., 316 F.2d 791.

Throughout the trial the court assumed a hostile attitude toward representatives of the United States to such an extent that this court is of the view that a fair trial was not had. This attitude is illustrated by comments during the course of the court's instructions to the jury. The action was referred to as one between a few citizens on one hand and all the power and majesty of the wealthiest nation in the world on the other hand. The government witnesses were classed as advocates, and their credibility was directly attacked because they were of the opinion that the property taken had no market value.² The implications of the court's attitude and one-sided remarks, were that an all-powerful government was unjustifiably attempting to acquire the owner's valuable property without paying anything for it. There is nothing in the record which would indicate that the government witnesses were not expressing an honest, fair and sincere opinion as to the value of the property.

A trial judge in a federal court has the unquestioned right to comment reasonably upon the evidence, and to express his opinion of it, provided it is made clear to the jury that it is not bound by his views and that they are the sole judges of the facts. Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321; Union Carbide and Carbon Corp. v. Nisley, 10 Cir., 300 F.2d 561; Appliance Distributors v. Mercury Electric Corp., 10 Cir., 202 F.2d 651. It is the duty of the court, however, to exercise great care to maintain an impartial attitude and not to become an advocate for one of the parties to the litigation or to mislead the jury. Grounds v. Roth, 10 Cir., 210 F.2d 239; Smith v. Welch, 10 Cir., 189 F.2d 832. The right of a trial judge to comment...