City of Wichita v. Eisenring
| Citation | 7 P.3d 1248,269 Kan. 767 |
| Decision Date | 14 July 2000 |
| Docket Number | No. 83,919.,83,919. |
| Parties | CITY OF WICHITA, KANSAS, Appellant, v. VICTOR B. EISENRING and JOHNNIE B. EISENRING, Appellees, and AMERICAN NATIONAL BANK OF WICHITA, Appellee. |
| Court | Kansas Supreme Court |
David M. Rapp, of Hinkle Elkouri Law Firm, L.L.C., of Wichita, argued the cause, and Roger M. Theis, of the same firm, was with him on the brief for appellant.
Martin W. Bauer, of Martin, Pringle, Oliver, Wallace & Swartz, L.L.P., of Wichita, argued the cause, and Kathryn Gardner, of the same firm, was with him on the brief for appellees.
The opinion of the court was delivered by
Through eminent domain, the City of Wichita (City) acquired 75.9 acres of real estate owned by Victor B. and Johnnie B. Eisenring. The City appeals from the jury determination of market value, claiming that the award was based upon expert testimony erroneously admitted without adequate foundation and, further, improperly based upon consideration of personalty located on the Eisenring property. We affirm.
Victor and Johnnie Eisenring, husband and wife, owned a 75.9 acre tract of land which the City sought to acquire by eminent domain in order to construct a new water plant. As required by statute, the court appointed a panel of appraisers to value the property. The report of appraisers concluded that the value of the property was $500,000.
The Eisenrings appealed to the district court from the award and requested a jury trial to determine compensation and damages. A trial on damages was held from June 29 to July 2, 1999.
A detailed statement of facts regarding opinion testimony on the market value of the property taken is necessary to address the City's claims of error. Victor Eisenring testified that he had purchased the property in about 1976 and had obtained a conditional use permit to extract sand and gravel from the property. Eisenring stated that the property contained good building sand and gravel to the 45 foot level or deeper. While the conditional use permit allowed Eisenring to mine up to 46.7 acres of the property, he had only mined around 6 acres by 1998. Eisenring explained that he was 81 years of age and did not want to operate the sand pit as an every-day operation. Instead, starting in about 1990, he mined only enough sand to make a good living, about an acre or less a year. He did not search out additional business because he did not want to work more than he did. He noted that two other operations were selling between 200,000 to 300,000 tons of sand and gravel per year.
Eisenring also operated a rock crusher on the property and allowed road contractors to dump their used and broken concrete rubble on his property which he would then crush and sell to the contractors as a base material. He estimated there were 45,000 tons of uncrushed rubble on the property as of the date of the taking. According to Eisenring, he crushed the concrete on his property, thereby making it valuable, and the value would be significantly reduced if it had to be removed from his property.
Eisenring admitted that his conditional use permit did not permit the crushing of rock. However, he testified that he had obtained a permit from the county to do so with regard to a highway project and had continued to crush the rock. Neither the City nor the County had ever indicated that he was not allowed to continue the crushing of rock on the property. In fact, counsel for the City expressly told him that he could continue to crush the rock.
Eisenring testified that the land would produce between 2 to 3 million tons of gravel and sand. After the gravel and sand were exhausted, the sand pit would be a lake and the remaining portion of the tract could be used for residential homes. Eisenring testified that there was a large amount of residential development in the immediate area. Some land in the area had recently been sold for in excess of $20,000 per acre.
Eisenring testified that in 1993, he had filed a financial statement valuing the tract of land at $450,000. However, he explained that this was before the growth of residential development in the area. In 1995, his financial statement listed the property at $780,000. He valued his property at $10,000 per acre, for a total of $759,000. On cross-examination, Eisenring admitted that his sales and revenue from the property from 1993 to 1997 reported for income tax purposes were as follows:
Year
Net Profit or (Loss) 1993 $219,480 ($17,140) 1994 $284,015 $261 1995 $166,795 ($47,000) 1996 $97,718 ($49,182) 1997 $167,522 ($36,613)
However, Eisenring testified that once he learned of the City's plan to condemn his land in 1995, he had significantly decreased production because he did not want to assume any long-term contracts he could not complete. He further testified that his lack of profitability was by his own choice in operating the sand pit in the manner in which he did.
Eisenring also admitted that he had at one point told the appraisers that he could buy sand cheaper than he could produce it. However, he stated that this comment was made in reference to the fact that if the job was not nearby it was cheaper to buy sand and gravel closer to the site than to produce and haul the sand and gravel from his site.
David Stannard, a highway paving contractor, testified in support of the Eisenrings. According to his calculations, the volume of useable sand and gravel to be produced from the area would be between 3,494,400 and 4,000,000 tons. He testified that the land should be valued at $10,000 per acre, for a value of $759,000.
Sherry Evans, a real estate broker, testified on behalf of the Eisenrings. She testified that she had listed the property in 1990 for $500,000 when it was vacant land without the lake created by the sand operation. She also testified that a piece of property nearby sold for $22,000 per acre. According to Evans, the Eisenrings' land should be valued at $10,000 per acre, considering the great amount of residential development in the area, for a total value of $759,000.
Ray Scadden, a real estate appraiser, also testified on behalf of the Eisenrings. He stated that he had appraised the property in 1990 for $401,443. Scadden testified that the value of the property had increased since then due to the residential development in the area. In Scadden's opinion, the highest and best use of the property would be for the production of gravel and sand, with residential use following the depletion of the gravel and sand.
In reaching his opinion, Scadden considered both the income and market data approaches to value. In utilizing the income approach, he obtained some information from Eisenring as well as from some competitors. He determined that the remaining 43 acres of Eisenring's property would yield 4,437,600 tons of sand and gravel. Competitors sold sand and gravel from $1 to $2.42 per ton. Utilizing the lowest price of $1 per ton, he concluded that over 5 years, the yearly estimated income would be $887,520. From information supplied by Eisenring, he concluded yearly expenses would be $122,547, leaving a net income of $764,973. This led him to place a value on the property of $714,973. He did not appraise the concrete rubble, but instead assumed it would be removed from the property.
Scadden also valued the property using the income method, assuming that the owner merely optioned the property to an operator and took a royalty income of 140 to 16¢ per ton. He estimated the value under that method to be $668,118.
Finally, Scadden appraised the property using the market data approach. He found that the property was most like neighboring property which had sold for $8,603 per acre. He opined that the property should sell for $8,300 per acre for a total value of $629,970. Scadden acknowledged that the market data approach is a more concrete approach to value than is the income approach.
Commercial real estate appraiser F. Lee Jones testified on behalf of the Eisenrings. After extensive evidence relating to his qualifications, Jones testified that he valued the property using the income method. In performing his analysis, he used 46.7 acres as the amount of sand and gravel that could be taken from the property which left 29.2 acres for development. He obtained a list of product prices from the Eisenrings' competitors and used an average per ton figure of $1.66. He calculated that 4,432,230 tons of product remained and that it could be sold at 200,000 tons per year for 22 years. He also calculated one year of crushed concrete production to use up the concrete on the site. He determined that for the first year of operation, the property would yield $669,500 in gross income, with $337,500 of that income from the crushed concrete. Thereafter, the property would yield $332,000 per year in gross income from the sand and gravel for 21 years. Jones was unable to obtain expense figures from the Eisenrings' competitors, so he used figures from Meier's Sand Company in Topeka, Kansas, which operates 11 sand pits across the state. According to Jones, utilizing an 11% capitalization factor, the present value of the income from the land over the 22 years would be $1,129,081, and at that time the property could be used for residential purposes with a value of $59,275.65. Thus, Jones opined that the property was worth $1,188,000. Without the concrete figured in, the value of the property under the income method would be $913,000.
Jones also performed an appraisal using the market data approach and valued the land under that approach at $7,900 per acre, or approximately $600,000.
On cross-examination, Jones admitted that he had obtained the amount of sand and gravel by assuming that the whole 40.7 acres could be mined straight down when, in fact, the conditional use permit called for a slope. Jones stated that he had not done the calculation with a slope.
The City presented the testimony of appraiser James L. Gardner, II....
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