Covina Union High School Dist. of Los Angeles County v. Jobe

• Citation: 174 Cal.App.2d 340,345 P.2d 78
• Parties: COVINA UNION HIGH SCHOOL DISTRICT OF LOS ANGELES COUNTY, Plaintiff and Appellant, v. Ruth JOBE et al., Defendants and Respondents. Civ. 23719.
• Decision Date: 09 October 1959
• Court: California Court of Appeals Court of Appeals

Page 78

345 P.2d 78

174 Cal.App.2d 340

COVINA UNION HIGH SCHOOL DISTRICT OF LOS ANGELES COUNTY, Plaintiff and Appellant, v. Ruth JOBE et al., Defendants and Respondents.

Civ. 23719.

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

Oct. 9, 1959.

Rehearing Denied Nov. 9, 1959.

Hearing Denied Dec. 2, 1959.

Harold W. Kennedy, County Counsel, A. R. Early, Deputy County Counsel, Los Angeles, for appellant.

Hill, Farrer & Burrill, Albert J. Day, Los Angeles, for respondents.

FOURT, Acting Presiding Justice.

This is an appeal by the plaintiff from a judgment in an eminent domain proceeding.

The plaintiff sought to acquire an 18.381 acre tract of land improved with a residence and orange grove, for school purposes. The property was located at the southwest corner of the intersection of Cypress Street and Azusa Avenue in Los Angeles County adjacent to the City of Covina and was zoned A-1 agricultural. The area surrounding the property in question for some years previously had been used for citrus groves. In recent years the area, except for Azusa Avenue property, changed into a single family residential district. A transition had taken place by the date of valuation in 1957 along Azusa Avenue in that there was commercial development of properties. Azusa Avenue was to be widened to a 100-foot state highway. The plaintiff contends that the judge erred in: (A) Admitting in evidence: 1. prices paid by the State of California for narrow strips of land purchased for the purpose of widening an existing highway; 2. the asking and answering of leading questions on cross-examination regarding the price paid by a governmental body in settlement of pending condemnation litigation; 3. the sales prices of relatively small lots, many zoned for commercial use, as evidence of the value of the 18-acre tract zoned against commercial use; (B) Permitting the asking and answering of leading questions on cross-examination of: 4. the prices at which 17 lots were listed for sale, 16 of them being less than 5 percent of the size of the tract condemned; 5. an alleged offer to buy land other than that condemned; 6. an appraisal of property adjoining that condemned which was made by someone other than the witness; and 7. the terms of a 90-day option to lease property other than that condemned.

Defendants testified that the total value of the property was $367,000 or at $20,000 per acre. One of the defendant's expert witnesses testified that the total value was $340,000 and the other said it was $350,000 or at $18,500 and $19,000 per acre respectively. One of the plaintiff's expert witnesses testified that the total value of the property was $193,000 or at $10,500 per acre and the other witness stated that the total value was $200,000 or at $10,875 per acre. The jury verdict set the value at $290,000 or at $15,777 per acre. It is fairly obvious that the verdict was a compromise decision.

The state made three purchases of strips of land from the defendants, the first of which was 20 feet wide and about 1,300 feet long (0.6 acre), for $15,246 per acre; the second strip was about 17 feet wide (0.05 acre), at the rate of $130,680 per acre and the third strip at the rate of $65,340 per acre (0.17 acre).

With reference to the item of A2 of plaintiff's contentions, plaintiff asserts that on the cross-examination of one of its experts the trial court permitted counsel for the defendants to ask a leading question setting forth the amount paid by the Covina School District (not the plaintiff here) in settlement of another condemnation case.

With reference to plaintiff's contention A3, it asserts that testimony was offered by the defendant and received over plaintiff's objection regarding the sales price of lots which ranged from 1 percent to 6 1/2 percent of the size of the parcel condemned.

With reference to plaintiff's B4, it asserts that defendant's counsel was permitted on cross-examination to inquire of plaintiff's experts with reference to listing of properties which were very much smaller than the parcel condemned. The evidence in this connection was received for the limited and sole purpose of testing the investigation made by the plaintiff's expert witnesses.

As to the contention in B5, plaintiff asserts that on cross-examination of one of its experts counsel for defendants asked a leading question to the effect that the owner had been 'offered $60,000.00 for a corner 150 X 150 at Workman and Azusa Avenue' and that the court refused to give an instruction to the effect that in determining fair market value the jury should give no consideration whatever to any offers alleged to have been made to purchase other properties.

With reference to plaintiff's B6 item, it contends that the court permitted defendant's counsel in cross-examining one of its experts to ask a leading question setting forth the amounts and a breakdown thereof, at which some other appraiser had appraised property purchased by the state from the defendants. The property about which the examination was concerned was adjacent to but not included within the property which plaintiff's expert witnesses had appraised.

In the last contention of plaintiff, namely B7, it asserts that in cross-examination of one of its witnesses the defendant's counsel asked leading questions pertaining to an option to lease property other than the condemned property.

A complete reading of the entire record in this case leads us to the conclusion that no reversible error was committed and that under the circumstances the judgment should be affirmed.

In considering plaintiff's first contention, we find that in effect plaintiff believes that the sale of the strip involved was not a voluntary sale because the state had to have the particular parcel involved and no other parcel would satisfy its requirements. In County of Los Angeles v. Faus, 48 Cal.2d 672, 312 P.2d 680, 684, the court said among other things:

"[E]vidence of the price paid [by the condemnor] should come in if the condemnor can satisfy the judge that the price paid was sufficiently voluntary to be a reasonable index of value. In any event, the sale must be genuine, and the price must be actually paid or substantially secured.' (See also dissenting opinion of Carter, J. in City of Los Angeles v. Cole, 28 Cal.2d 509 523-524, 170 P.2d 928.)'

In the dissent referred to approvingly, Justice Carter said at page 523 of 28 Cal.2d at pages 936-937 of 170 P.2d 'In my opinion the cases heretofore cited which hold that the sales of other similar property are not admissible to prove value are clearly unsound and should be overruled. Their force is considerably weakened if not destroyed by the addition in 1937 of section 1872 to the Code of Civil Procedure. It reads: '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 main purpose of that section was to do away with the former court made rule that an expert witness could not give his reasons. But if he may give his reasons those reasons may consist of reference to prices paid in sales of similar property in the vicinity. Certainly, he could give such reason for he could be asked on cross-examination concerning other sales. Being able to testify to these sales as reasons, they are direct and probative evidence on the value of the property in controversy.

'In the instant case the challenged instructions to the jury dealt with the evidence of the price paid at sales of other property to the condemner in acquiring property for its project. On the general theory evidence of those sales was probative evidence of value. The only question is whether it should be excluded because it violated the substantive law test of market value; that is, a buyer and seller willing to deal and not acting under compulsion. That, however, is a matter going to the weight or value of the evidence not its admissibility and can properly be governed by the discretion of the trial judge. See Wigmore on Evidence (3d ed.), vol. II, p. 505, § 463; 4 Cal.L.Rev. 151, 152. If the circumstances of a particular sale are such that it was not a free bargain between the parties it might not be very valuable in ascertaining market value, but that depends upon the facts. All sales merely because they are to the condemner are not under fear or compulsion or lacking in freeness. The condemner may well be paying what it feels the property is worth and the buyer selling for a price he believes is fair. The only case in California that declares evidence of such sales inadmissible is City of San Luis Obispo v. Brizzolara, 100 Cal. 434, 34 P. 1083, and there it was conceded that evidence relating to other sales could be developed on cross-examination. If it was proper there as bearing on value it certainly was pertinent on direct examination. There are authorities declaring evidence of sales to the condemner admissible in a condemnation suit. Shaw v. Monongahela Ry. Co., 110 W.Va. 155, 157 S.E. 170; Hadley v. Board of Chosen Freeholders of Passaic County, 73 N.J.L. 197, 62 A. 1132; Ross v. Commissioners of Palisades Interstate Park, 90 N.J.L. 461, 101 A. 60; Eames v. Southern New Hampshire Hydro-Electric Corp., 85 N.H. 379, 159 A. 128; Louisiana Highway Commission v. Merchant, La.App., 174 So. 696; Washington Home for Incurables v. Hazen, 63 App.D.C. 185, 70 F.2d 847; Maxwell v. Iowa State Highway Commission, 223 Iowa 159, 271 N.W. 883, 118 A.L.R. 869, 898; Orgel on Valuation under Eminent Domain, § 146. In Eames v. Southern New Hampshire Hydro-Electric Corp., supra, 159 A at page 130, the court said: 'What the courts, holding to the majority view [that other sales to the condemner are not admissible], have seemingly done, is to adopt the mere pronounced phenomena incident to sales to a condemner as a conclusive test of their probative character. Although such sales are...