Los Angeles County v. Faus

• Decision Date: 21 June 1957
• Citation: 312 P.2d 680,48 Cal.2d 672
• Court: California Supreme Court
• Parties: COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. L. C. FAUS et al., Defendants, L. C. Faus, Francis P. Graves, Paul Overton, Mary G. Faus, Katharine Graves Armstrong and Alice Graves Stewart, Defendants and Appellants. L. A. 24444.

Page 680

312 P.2d 680

48 Cal.2d 672

COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. L. C. FAUS et al., Defendants, L. C. Faus, Francis P. Graves, Paul Overton, Mary G. Faus, Katharine Graves Armstrong and Alice Graves Stewart, Defendants and Appellants.

L. A. 24444.

Supreme Court of California, In Bank.

June 21, 1957.

Rehearing Denied July 16, 1957.

Holbrook, Tarr, Carter & O'Neill, W. Sumner Holbrook, Jr., Francis H. O'Neill, Los Angeles, S. V. O. Prichard, Hollywood, Charles F. Reiche, Los Angeles, Walhfred Jacobson, City Atty., Long Beach, Joseph B. Lamb, Asst. City Atty., Long Beach, John Anson, Irl D. Brett and Thomas G. Baggot, Los Angeles, for appellants.

Harold W. Kennedy, County Counsel, John H. Larson, Richard L. Riemer, Arthur Loveland and Lloyd S. Davis, Deputy County Counsel, Los Angeles, for respondent.

McCOMB, Justice.

Defendants appeal from a judgment in a condemnation proceeding after a trial by jury which fixed the value of their property to be acquired by plaintiff.

Defendants are the owners of certain elongated strips of realty situated in the cities of Alhambra and San Marino. These strips are portions of an abandoned right of way in the center of Huntington Drive that formerly provided the streetcar route from Los Angeles northeasterly through the Santa Anita area. The vacant right of way is 60 feet wide and divides Huntington Driver. Parcel 20-2, bounded by Stoneman Avenue, Atlantic Avenue and the two sides of Huntington Drive, is Drive. Parcel 20-2, bounded by easterly from Stoneman to Granada Boulevard, a distance of 1,435.13 feet. The northerly half of each parcel is located within San Marino; the southerly half within Alhambra.

Plaintiff has condemned a 30-foot strip running along the southerly edge of each parcel for the purpose of widening Huntington Drive.

The only witnesses of behalf of plaintiff, Frank C. Wood and J. B. Irvin, testified that they based their estimates of market value of the subject property 'primarily' upon prices paid on 12 sales of rights of way, eight of which had been made to government agencies possessing the power of condemnation. Five consisted of strips of land that had no street access whatsoever, unlike the situation existing here. Several of the parcels purchased by government agencies with power of condemnation were in fact situated '15 or 20 miles' from defendants' property.

At the close of witness Wood's cross-examination, defendant moved to strike his testimony on the market value of the subject property upon the ground that it was based upon two incompetent considerations, to wit, (1) consideration of incompetent sales to public bodies with power of condemnation, and (2) the witness' conception that the market value of the property was its value in use to the condemning county and not its highest and best use to the public generally. This motion was denied. A similar motion was not made at the end of witness Irvin's testimony; however, in view of the previous ruling of the court it is apparent that such a motion would have been futile.

At the end of the trial defendant offered the following instructions, which the trial judge refused:

'You are instructed that the price fixed by an agreement between the owner of property and public corporations, such as the State of California, County of Los Angeles, or municipal corporation, seeking to condemn the land by virtue of eminent domain or having the power so to do, cannot be taken as a criterion of the market value of other land in the vicinity. The prices so fixed by compromise, when there can be no other purchasers, and the seller has no option to refuse to sell and can only elect between the acceptance of the price offered and the delay, uncertainty and trouble for legal proceedings of an assessment, is not a reasonable or fair test of just compensation for the defendant's property. It is in no sense a sale in the market.

'You are instructed that the price paid by a public corporation such as the State of California, County of Los Angeles, or any municipal corporation, for other property, said party having the right of condemnation by virtue of eminent domain, is not a proper basis for a determination of market value of the property here in question. Such sales are not a fair criterion of value for the reason that they are in the nature of a compromise. The fear of the one party or the other to take the risk of legal proceedings ordinarily results in the one party's paying more or the other party's taking less than is considered to be the fair market value of the property. For these reasons such sales are not proper evidence of value in any case, whether in a proceeding by the same condemning party or otherwise.'

These questions are presented for our determination: First: Did the trial court err in refusing to give the instructions requested by defendant set forth, supra?

Yes. In passing upon the contention that two instructions almost identical with the requested instructions in this case were correct and properly given in a condemnation case, this court said in City of Los Angeles v. Cole, 28 Cal.2d 509, 517, 170 P.2d 928, 933: 'Contrary to appellants' claim, the challenged instructions correctly state the law governing the jury's determination of the market value problem in the light of the evidence adduced. As claimed by respondent, these instructions are in part a paraphrase and in part a precise reproduction of a quotation from Mr. Lewis in his treatise on Eminent Domain (1st Ed., § 447; 3d Ed., § 667) as discussed with approval in the early case of City of San Luis Obispo v. Brizzolara, 100 Cal. 434, 436, 34 P. 1083.'

Based on the foregoing authorities the trial court erred in refusing to give the requested instructions to the jury. Although we have concluded that these authorities should no longer be controlling for the reasons set forth below, the judgment will be reversed so that the parties herein may try the issue of value according to the rule herein adopted.

Second: In view of the provision in section 53 of the Code of Civil Procedure that '* * * if a new trial be granted, the court shall pass upon and determine all the questions of law involved in the case, presented upon such appeal, and necessary to the final determination of the case,' this question is presented: In a condemnation proceeding, is evidence of the prices paid for similar property in the vicinity, including prices paid by the condemner, admissible on (a) direct examination, and (b) cross-examination of a witness who is presenting testimony on the issue of the value of the condemnee's property?

Yes. Section 1872 of the Code of Civil Procedure provides: 'Whenever an expert witness gives his opinion, he may, upon direct examination, be asked to state the reasons for such opinion, and he may be fully cross-examined thereon by opposing counsel.'

The reasons in support of the admissibility of such evidence are stated by Professor Wigmore in his treatise on the law of Evidence (3d ed. 1940), vol. 2, section 463, pp. 503 [48 Cal.2d 677] et seq., as follows: 'When the conduct of others indicating the nature of a salable article consists in offering this or that sum of money, it creates the phenomena of value, so-called. For evidential purposes, Sale-Value is nothing more than the nature or quality of the article as measured by the moeny which others show themselves willing to lay out in purchasing it. Their offers of money not merely indicate the value; they are the value; i. e. since value is merely a standard or measure in figures, those sums taken in net potential result are that standard.

'But the evidential question is not concerned with the many subsidiary principles of the law of Damages, or standard of value, that come into play. Whether an unaccepted offer of purchase at a certain figure may be looked to as determining value, or whether the price of a sale or the cost of making may be looked to, these are questions which arise because value is a test formed by averaging results and because it is necessary to define the range over which the true idea of value permits the estimate to go. That is not an evidential process, but a process of average calculation. So, too, the question whether the the estimate to go. That is not an evidential place may be resorted to depends on whether, in defining the range of data, it is fair for the purposes in hand to allow marketability at another place or time to be considered; there the process is still one of defining the range of the value-idea. * * *

'There is, however, one question indirectly involving a rule of Evidence, the question whether the value of another article is receivable in order to show the value of the article in issue. As the price at a sale is, by the law of Damages, conceded to be an element in the test of value (except perhaps in forced sales), this question is usually presented in the form, whether a sale of other property is admissible as evidence of the value of the property in question.

'In answering this question, it is found that the two leading principles already expounded come into joing application, the principle of Relevancy and the principle of Auxiliary Policy. According to the former, the value or sale-price of the other property is relevant only when the property is substantially similar in conditions; according to the second, it may be excluded, though relevant, if it involves in the case in hand a disproportionate confusion of issues and loss of time.

* * *

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'It is enough to note (1) in answer to the argument from Relevancy, that since value is a money-estimate of a marketable article possessing certain definable qualities, the value of other marketable articles possessing substantially similar qualities is strongly evidential and is so treated in commercial life; all the argument and protestation conceivable cannot alter the fact that the commercial world perceives and acts on this relevancy; (2) in...