City and County of Denver v. Lyttle

• Decision Date: 22 April 1940
• Docket Number: 14565.
• Citation: 106 Colo. 157,103 P.2d 1
• Parties: CITY AND COUNTY OF DENVER v. LYTTLE.
• Court: Colorado Supreme Court

103 P.2d 1

106 Colo. 157

CITY AND COUNTY OF DENVER v. LYTTLE.

No. 14565.

Supreme Court of Colorado, En Banc.

April 22, 1940

Rehearing Denied June 3, 1940.

Error to District Court, Arapahoe County; Samuel W. Johnson, Judge.

Condemnation proceeding by the City and County of Denver against B. S Lyttle to acquire the defendant's land. To review a judgment fixing condemnation award, the plaintiff brings error.

Affirmed.

OTTO BOCK, FRANCIS E. BOUCK, and BURKE, JJ., dissenting.

Malcolm Lindsey, Frank L. Hays, and E. L Fundingsland, all of Denver, for plaintiff in error.

Horatio S. Ramsey, of Littleton, and Alter & Upton, of Denver, for defendant in error.

BAKKE Justice.

Plaintiff in error, plaintiff below, instituted condemnation proceedings to acquire the farm of defendant in error, comprising 480 acres, for use as part of a bombing field auxilliary to the Air Corps Technical School east of Denver. The determination of the value of the farm was submitted to a jury which fixed it at $8,434, or approximately $17.50 an acre. Judgment was duly entered on the verdict, to reverse which the case is here on a writ of error. Reference will be made to plaintiff in error as the City, and defendant in error as the owner, or Lyttle.

The City's assignments of error may be summarized in the following: 1. Five of the owner's witnesses were not qualified to testify as to the value of the land condemned. 2. The court should have admitted testimony regarding alleged voluntary sales of land to the City within the proposed condemned area. 3. An improper remark made by one of the attorneys for Lyttle should have been stricken. 4. City's tendered instruction number one should have been given.

1. The five witnesses whose competency and qualifications are challenged are Ruggles, Kidder, Davis, Woodworth and Hall who may be personalized briefly as follows: Ruggles was a farmer and dairyman. He owned and had lived on his farm--which is located about five miles from the land here in controversy--since 1921. He had been employed at various times by Lyttle during the harvest period and had aided in the construction of some of the improvements on the place. He testified that he was familiar with the land and improvements on the Lyttle place, but admitted that his knowledge of sales in the community was derived from hearsay. He further testified that the Lyttle farm, improvements, and growing crops, were worth $12,000. Kidder had been in the real estate business in Colorado for twenty-five years, during the last ten of which he was engaged in farming in Adams and Arapahoe counties. He testified that he knew the value of the Lyttle farm and that $9,600 was a fair price. Davis had operated a bank at Parker for some time. He testified that his bank did not make farm loans, but that he was familiar with the Lyttle farm, and that about one hundred acres under cultivation was worth $30 an acre; that one hundred acres of good soil, capable of cultivation, was worth $27 an acre; that two hundred eighty acres of grazing land was worth $15 an acre, and that the farm taken as a whole with the springs and buildings was worth $10,000. Woodworth had lived at Parker for five years and had been engaged in farming, trucking, and the gas and oil business. He testified he had transported two thousand bushels of wheat from the Lyttle place in 1937, and that he had recently purchased a farm in that vicinity for which he had paid $20 an acre without improvements. He further testified that the Lyttle farm, including improvements, was worth $10,850. Hall had been a resident of Parker for eighteen years, where he had been employed by a hardware and lumber company, and later owned and operated a store and trucking business of his own. He had engaged in farming, but not in the state of Colorado. He testified that he based his opinion as to the value of the Lyttle farm upon his general knowledge of the neighborhood, productivity of the soil, and the sale and transfer of land in that community that had taken place during the last eighteen years. His testimony was that the Lyttle farm was worth $10,146.47. The average of these five estimates is $10,519.29.

The first question then is: Does the above résumé of the testimony of these men show affirmatively that they were not qualified to testify as to the value of Lyttle's land? We think not. Counsel for the City concede the applicability of the following rule: 'Whenever it is desired to have the opinion of a witness on the subject of value, it is always necessary, whether the witness is offered as an expert or not, to lay some foundation for the introduction of his opinion, by showing that he has had the means to form an intelligent opinion, 'derived fom an adequate knowledge of the nature and kind of property in controversy, and of its value.'' Butsch v. Smith, 40 Colo. 64, 90 P. 61, 62, and Hoover v. Shott, 68 Colo. 385, 189 P. 848, the authors of both opinions quoting from Rogers on Expert Testimony, 2d Ed., § 152.

Another applying rule, which also is conceded by counsel for the City is: 'Whether a witness called to testify as to any matter of opinion has such qualifications and knowledge as to make his testimony admissible is a preliminary question for the judge presiding at the trial; and his decision is conclusive unless clearly shown to be erroneous in matter of law.' Hoover v. Shott, supra [68 Colo. 385, 189 P. 850], quoting from the case of Stillwell & Bierce Mfg. Co. v. Phelps, 130 U.S. 520, 9 S.Ct. 601, 32 L.Ed. 1035.

The only authority in this jurisdiction cited by counsel for the City, the announced principle in which they seem to feel was violated, is the case of Loloff v. Sterling, 31 Colo. 102, 71 P. 1113, a proceeding for condemnation of a reservoir site, in which the judgment was reversed. However, when we consider that the reversal was ordered for the reason that it was error to refuse to permit the landowner, who had qualified as an expert, and had intimate knowledge of the character of the soil, to testify as to probable damage from seepage, it becomes at once apparent that that case is not authority for excluding the testimony of the five witnesses here.

It is a matter of common knowledge that there have been few free and open sales of real estate in the rural areas in the last few years, and, consequently, there is no sales-basis for determining a market value at a given time. However, evidence of sales is not the only criterion for determination of value. We have held that, 'Any reasonable future use to which the land may be adapted or applied by men of ordinary prudence and judgment may be considered in so far * * * as it may assist the jury in arriving at the present market value.' Wassenich v. City and County of Denver, 67 Colo. 456, 466, 186 P. 533, 537; Denver Joint Stock Land Bank v. Board of County Commissioners, 105 Colo. 366, 98 P.2d 283, 286.

Witness McMillan, whose testimony is not challenged, stated that Lyttle's farm was worth $8,360, which amount was only $36 less than that found by the jury.

2. Did the court err in excluding evidence of offers to sell and certain sales made in the community at about the same time? This evidence was given by certain individuals--one to sell three sections of land at $7 an acre; another ten thousand seven hundred twenty acres, at the same price, and an actual sale at $6.90 an acre. The court did not err in excluding this testimony, even conceding it related to land within the area to be condemned, and that the offers and sale were made after all negotiations with the federal government had been completed, and the City had adopted its condemnation ordinance. It was a matter of common knowledge that the land would be condemned, and the offers were made shortly prior to the time of the institution of these proceedings. Both sides concede that there are two lines of authority on the proposition and that the majority rule is against the admissibility of such evidence. 2 Lewis on Eminent Domain, 3d Ed., p. 1147, § 667; 20 Am.Jur. § 381. We are not persuaded that there is an occasion to depart from the majority rule, and, therefore, concur in the action of the trial court in excluding testimony regarding these offers of sale. Evidence of five sales by the Federal Land Bank of lands which it had obtained under foreclosure proceedings was admitted without objection. These sales prices varied from $6.25 an acre to $12.60 an acre.

3. The alleged improper remark of one of Lyttle's attorneys made in the presence of the jury, concluded as follows: ...