Contra Costa County v. East Bay Municipal Dist., 18680

• Decision Date: 07 December 1959
• Docket Number: No. 18680,18680
• Citation: 1 Cal.Rptr. 60,175 Cal.App.2d 834
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF CONTRA COSTA, a political subdivision of the State of California, Plaintiff and Respondent, v. EAST BAY MUNICIPAL DISTRICT, etc., et al., Defendants, Patrick J. Murphy and Diane P. Murphy, Defendants and Appellants.

Page 60

1 Cal.Rptr. 60

175 Cal.App.2d 834

COUNTY OF CONTRA COSTA, a political subdivision of the State of California, Plaintiff and Respondent, v. EAST BAY MUNICIPAL DISTRICT, etc., et al., Defendants Patrick J. Murphy and Diane P. Murphy, Defendants and Appellants.

No. 18680.

District Court of Appeal, First District, Division 1, California.

Dec. 7, 1959.

Hearing Denied Feb. 3, 1960.

Phillip M. Millspaugh, Richmond, for appellants.

John A. Nejedly, Dist. Atty. of County of Contra Costa, John B. Clausen, Deputy Dist. Atty., Martinez, for respondent.

DUNIWAY, Justice.

Action to condemn a strip of land and an adjacent easement for drainage. The sole question involved is whether it was error to permit plaintiff's counsel, in cross-examining an expert who had testified for defendants as to the value of the property to be taken, to bring out the fact that in another case the expert had expressed a markedly different opinion as to the value of a comparable property. We find no error.

The county sought to condemn a strip of plaintiff's land, in fee, containing 4,972 square feet, and a drainage easement containing 3,948 square feet, both for road purposes. The expert testified that the two parcels (8,920 square feet) had a value of $4,211, and that the taking of the easement was equivalent in value to the taking of a fee in the property subject to the easement. He fixed severance damage at $9,489 additional. The jury awarded a total of $535.

The appealing defendants' land is on San Pablo Dam Road, extending at the rear to San Pablo Creek. It has a frontage of 331.45 feet on the road. It is zoned residential, with minimum lot size of 7,000 feet, 70 foot frontage. The strip of land taken in fee is 15 feet wide, along San Pablo Dam Road, and the drainage easement is for a slope along the strip and a culvert at one end, near a corner of defendants' property. After the taking, there was still enough depth from the road to satisfy the lot size requirements with minimum 70 foot frontage.

The witness testified on September 4 and 8, 1958. On cross-examination he was asked whether on February 4, 1958, he had testified, in another condemnation action, as to the value of another piece of property. Counsel for defendant objected. This property was located on the same road, half to three-quarters of a mile away, zoned the same. It was narrower. The shape of both parcels appeared on the witness' map. It also backed up on the creek. The witness stated that it was less flat, but that the 'drainage fee' taken was very similar. The property was closer to the shopping center, which the witness said made it less valuable than defendants' property. Counsel's objection was: 'He is here as an expert, giving his opinion as to the value of a particular property in question. What he gave as his opinion on another case is certainly far beyond the scope of the rules of going into hearsay and it is not relevant in any respect in this case * * *.' The objection was overruled, the court saying: 'I don't see where hearsay is involved. You may impeach him by showing at other times he made statements inconsistent with his present testimony. * * * That's for the jury to determine whether they are or are not inconsistent.'

The witness then testified that he had valued the other property at 10cents per square foot as against 43cents in this case and that he had...