District of Columbia Redevelopment Land Agency v. Thirteen Parcels of Land in Squares 859, 912, 934 and 4068 in District of Columbia

• Decision Date: 23 February 1976
• Docket Number: No. 74-1644,74-1644
• Citation: 534 F.2d 337,175 U.S.App.D.C. 135
• Parties: DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY, a Body Corporate v. THIRTEEN PARCELS OF LAND IN SQUARES 859, 912, 934 AND 4068 IN the DISTRICT OF COLUMBIA et al. Appeal of Raymond F. LEWIS and Violet Lewis.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 337

534 F.2d 337

175 U.S.App.D.C. 135

DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY, a Body Corporate v. THIRTEEN PARCELS OF LAND IN SQUARES 859, 912, 934 AND 4068

IN the DISTRICT OF COLUMBIA et al.

Appeal of Raymond F. LEWIS and Violet Lewis.

No. 74-1644.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 8, 1975.

Decided Feb. 23, 1976.

Leonard C. Collins, Washington, D.C., for appellants.

Glen R. Goodsell, Atty., Dept. of Justice, Washington, D.C., with whom Wallace H. Johnson, Asst. Atty. Gen., and Jacques B. Gelin, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellees.

Before TAMM, ROBINSON and MacKINNON, Circuit Judges.

Opinion for the Court filed by Circuit Judge TAMM.

Dissenting opinion filed by Circuit Judge MacKINNON.

TAMM, Circuit Judge:

The District of Columbia Redevelopment Land Agency ("DCRLA") filed a declaration of taking, condemning appellant's three lots located at 1424 Florida Avenue, N.E. ¹ After a trial, compensation was fixed at $64,600. This figure was the highest estimate given by DCRLA's expert witness, who testified that the land was worth $60,200 or $64,600, depending upon which of two methods of valuation was used. The trial court refused to permit the landowner to testify as to his opinion of the reasonable value of the property insofar as it was based in part on his purchase for $120,000 of another piece of property located on Bladensburg Road, which the court found to be not comparable. ² The landowner appeals, contending that this personal testimony as to value, so based, should have been admitted. We conclude that the landowner should have been permitted to testify as to the value of his property even though his opinion was based in part on his experience with the Bladensburg Road property. We believe that differences between the two pieces of property properly go to the weight of the owner's testimony, not to its admissibility. Accordingly, we reverse and remand for a new trial.

As a general principle, "just compensation" for property taken by the government is compensation "sufficient to make good the loss to the owner . . . . (The owner is) entitled to the full money equivalent of the property taken, and thereby to be put in 'as good a position pecuniarily as it would have occupied, if the property had not been taken.' " 1 L. Orgel, Valuation Under the Law of Eminent Domain § 46 at 222 (2d ed.1953), quoting United States v. New River Collieries Co., 262 U.S. 341, 343, 43 S.Ct. 565, 566, 67 L.Ed. 1014, 1016 (1923). Unfortunately, value is a subjective concept, and there is often a substantial gap between value to the owner and value to others the government, a hypothetical buyer, or the public at large. Courts thus have adopted market value as a rough equivalent of value to the owner, but have disregarded certain personal aspects of the loss to the owner, including "sentimental losses," and "incidental damages." In short,

the "value" of the property is visualized as something distinct from the injuries which its taking will impose on the owner, although it is closely associated with its injuries. The conceptual mythical distinction between a (positive) value on the one hand, and a (negative) summation of damages on the other hand, pervades nearly all judicial opinions.

Id. at 223.

At least in part because of the difficulty of arriving at one "value" equivalent to "just compensation" for property taken, condemnation proceedings have been characterized by liberal applications of the rules of evidence. ³ Often witnesses are allowed to testify as quasi "experts" despite their lack of specialized knowledge or training respecting the market value of land. See generally, 1 Orgel, supra, § 132 at footnotes 43-45 and cases cited therein.

As a general rule, the opinion of a landowner as to the value of his land is admissible without further qualification because of his close relationship with the land. ⁴ Others may be qualified as experts, but an owner is usually not required to so qualify. In hornbook terms,

(a)n owner of property is always entitled to testify as to its value, and to express an opinion as to its value in condemnation proceedings. An owner does not have to qualify as an expert, nor be engaged in buying and selling real estate.

1 Orgel, supra, § 132 at 567-68 n.46, quoting Provo River Water Users' Ass'n v. Carlson, 103 Utah 93, 133 P.2d 777, 781 (1943). See also Kinter v. United States, 156 F.2d 5 (3d Cir. 1946); Bateman v. Donovan, 131 F.2d 759 (9th Cir. 1942). See generally 3 Wigmore on Evidence §§ 714, 716 (Chadbourn rev.1970); 32 C.J.S. Evidence § 546 (120) at 470-72.

Transcending this level of generality quickly leads to divided opinions and conflicting authorities, however. One line of authority, most notably represented by Wigmore, supra, apparently takes the position that an owner is per se qualified, and that any lack of knowledge goes only to the weight of his testimony. ⁵ Other authorities adopt the slightly different rule that ownership establishes a presumption of knowledge which, if rebutted, renders the testimony inadmissible. ⁶ Cofflin v. State, 230 Md. 139, 143, 186 A.2d 216, 219 (1962). This distinction may become important where a court must confront the question whether an owner is permitted to testify as to the value of his land qua owner, or is merely granted a presumption which, if not rebutted, entitles him to take the stand to testify as an "expert" on his own behalf. In the former case, the testimony of the owner logically would require no basis for its admissibility other than the mere fact of ownership, and the facts upon which the owner bases his opinion should be left to the jury in weighing the evidence; in the latter, admissibility would depend upon whether the opinion rested upon some independent competent and relevant basis, such as experience in buying or selling land, general knowledge of land values in the area or sales of comparable land, or some particular knowledge relating to the land in question. ⁷ In the case of an expert witness who bases his testimony on improper and incompetent grounds, the rule is clear that the testimony should not be admitted. See, e. g., Commonwealth, Dep't of Highways v. Darch, 374 S.W.2d 490 (Ky.1964); San Diego Land & Town Co. v. Neale,88 Cal. 50, 25 P. 977 (1891). This is so because the probative value of such expert testimony, stripped of its claim of expertise, is very low, while the likelihood that it will confuse the trier of fact is very high. In these matters, the trial judge has considerable discretion. See, e. g., District of Columbia Redevelopment Land Agency v. 61 Parcels of Land, 98 U.S.App.D.C. 367, 235 F.2d 864 (1956). Other courts have gone farther, and have applied the expert basis rule to owners' testimony. See, e. g., Commonwealth, Dep't of Highways v. Fister, Ky., 373 S.W.2d 720, rehearing denied, 376 S.W.2d 543 (Ky.1963). In these instances, however, we believe the discretion of the trial judge must be tempered by another factor the policy in favor of permitting owners to testify as to the value of condemned property.

It is axiomatic that a landowner has more leeway in fixing values than does an expert. We said in Arkansas State Highway Comm. v. Fowler, 240 Ark. 595, 401 S.W.2d 1 (1966): "It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns. The weight of his testimony is, of course, affected by his knowledge of the value."

Arkansas State Highway Comm'n v. Mullens, 255 Ark. 796, 797, 502 S.W.2d 626, 627 (1973). See also Arkansas State Highway Comm'n v. Russell, 240 Ark. 21, 398 S.W.2d 201 (1966) (disclosure of questionable basis for owner's testimony affects the weight of the testimony). The owner does not testify as just another expert, but from his unique position as the individual who stands to gain or lose the most from the tribunal's determination of the value of his property. The owner is draped with no cloak of expertise; the jury is aware of the owner's interests and free to evaluate his testimony, even to discard it altogether, in weighing the evidence. Although courts have excluded owners' testimony based on such factors as personal or sentimental value ⁸ or speculation as to business profits, ⁹ the right of the owner to testify is based, at least in part, on the recognition of the subjective nature of value. Opinions as to value differ, and the owner has a right to place all evidence pertaining to the value of his condemned property before the trier of fact. ¹⁰ Turning now to examine the particular testimony sought to be introduced in this case, we find that under either standard the owner's testimony should have been admitted in this case.

As the dissent correctly states, the issue here is not merely a matter of testimonial qualification. Appellant did in fact take the stand and testify. The issue is thus more correctly viewed as one of admissibility. In determining whether appellant's testimony should have been admitted, we must look both to the traditional rules of evidence, liberally applied, and to the special nature of eminent domain proceedings, especially the unique position of the owner of the condemned property. See generally, 1 Orgel, supra, § 133; 5 Nichols on Eminent Domain, § 18.4(2) (rev. 3d ed. 1975).

Appellant attempted to compare his business operations on the two sites in order to demonstrate that the Florida Avenue location was a better site. At oral argument, appellant's counsel explained that, because of the greater flow of traffic at the Florida Avenue location, that property should be assigned a greater value than the Bladensburg Road location:

(T)here was more road traffic. He had been able to build up at (the Florida Avenue) location in three years what it took him over 20 years to build up at...