Devou v. City of Cincinnati

• Decision Date: 15 June 1908
• Docket Number: 1,778.
• Citation: 162 F. 633
• Parties: DEVOU v. CITY OF CINCINNATI.
• Court: U.S. Court of Appeals — Sixth Circuit

162 F. 633

DEVOU v. CITY OF CINCINNATI.

No. 1,778.

United States Court of Appeals, Sixth Circuit.

June 15, 1908

Fred W Keam, for plaintiff in error.

Albert H. Morrill, for defendant in error.

Before LURTON and RICHARDS, Circuit Judges, and KNAPPEN, District judge.

RICHARDS Circuit Judge.

This was a suit brought by the city of Cincinnati to condemn certain pieces of property for park purposes. Among the defendants was Sarah O. Devou, the owner of parcel No. 22 consisting of a lot 50 feet by 100 feet, at the southeast corner of Mound and Barr streets, on which there is a four-story stone and brick building, containing about 50 rooms, and parcel No. 35, consisting of a lot 25 feet front on the north side of Kenyon avenue (No. 628) by 80 feet in depth, upon which there is a two-story brick and frame dwelling house of eight rooms. The case was submitted to jury, which assessed the compensation to be paid by the city to Mrs. Devou as follows:

Parcel 22. Value of land taken, including buildings and other structures situate thereon, $20,000. Damages to residue nothing.

Parcel 35. Value of land taken, including building and other structures situate thereon, $3,000. Damages to residue nothing.

The usual formal errors are assigned, namely, that the verdict is contrary to the weight of the evidence and against the law, that it does not give a fair equivalent for the property taken, that the court erred in its charges and in overruling the motion for a new trial, and that the judgment is contrary to law; but none of these are seriously relied upon in argument. The error relied upon is the refusal of the court to admit the testimony of architects, builders, and insurance adjusters, who were unable to qualify as experts upon the value of the real estate involved, and were interrogated upon the value of the buildings exclusive of the land. The court's action, and the nature and effect of the ruling, appear in the testimony of James McLaughlin, Charles Rosenstein, and George B. McMillan. McLaughlin is an architect, who has constructed a number of prominent buildings in Cincinnati. After stating that fact, and that he had examined the property of Mrs. Devou at the corner of Barr and Mound streets, he was asked to give his opinion of the present value of that property.

Before answering this question, he stated touching his qualifications as a witness:

'I do not profess to be an expert on the value of property on Mound street.'

And in consequence the court sustained the objection that he was not qualified as an expert on the value of real estate in that locality. He was then asked what the value of the improvements on the lot at the corner of Barr and Mound streets added to the value of the ground. The court ruled that it was not competent to show the value of the building separately from the value of the land:

'The value of the land may be shown, and then, in addition, you may show there is a building on it, and the character of the building and the use to which it can be devoted, as enhancing the value of the land.'

After this ruling the witness was allowed to state what, in his opinion, it would cost to put a building on the lot. The next day the court reconsidered its ruling and said:

'Yesterday the court ruled upon the introduction of testimony as to the cost of construction of the building or buildings upon this land. In thinking of it since, I think the court was wrong. The question here is as to the market value of this property, and it is entirely legitimate and proper to show what these buildings are, the condition in which they are, whether they are substantial, of stone, brick, or frame, how situated, to show that they are suitable for many uses that would give them value and make them salable-- all those things. But what they cost back in 1867, and what they would cost to-day, does not throw any light upon the market value. Sometimes money is very foolishly expended in the erection of a building, so that it is entering the field of speculation, and it cannot aid, but would confuse, the jury in determining what the fair market value of the property is. Therefore the court will exclude all the answers that were given. All the testimony given on that subject yesterday, will be stricken out, and the jury instructed not to consider it.'

The witness was then asked:

'Suppose that the ground at the corner of Mound and Barr streets is of the value of $15,000 without any buildings upon it, what in your opinion would be the value of the ground with buildings upon it in their present condition?'

This question was objected to. It was limited by certain questions of the court to an attempt to secure from the witness an opinion of the value of the buildings alone, although it appeared that the witness was not an expert upon real estate values in that locality, and was then excluded.

Charles Rosenstein was a contractor and builder. He also acted as an adjuster for fire insurance companies. He described the improvements upon the property on the corner of Barr and Mound streets. He had...