Douglas County v. Myers

• Decision Date: 31 March 1954
• Citation: 268 P.2d 625,201 Or. 59
• Parties: DOUGLAS COUNTY v. MYERS et al.
• Court: Oregon Supreme Court

Page 625

268 P.2d 625

201 Or. 59

DOUGLAS COUNTY v. MYERS et al.

Supreme Court of Oregon.

Argued and Submitted March 3, 1954.

March 31, 1954.

Harrison R. Winston, Roseburg, Winston & Dimick, Roseburg, on the brief, for appellants.

Warren A. Woodruff, Roseburg, Robert M. Stults, Roseburg, on the brief, for respondent.

Before WARNER, Acting C. J., and LUSK, BRAND and PERRY, JJ.

PERRY, Justice.

This is an action brought by the plaintiff to exercise its right of eminent domain by condemning a strip of land containing 3.17 acres through the land of the defendants. The jury returned a verdict for the sum of $4,250, with interest, and from the judgment entered thereon by the circuit court the defendants have appealed.

The defendants assign as error the admission of the testimony of the plaintiff's witness, P. K. DeShields. The sole objection to his evidence arises as follows:

'Q. Now, what would be your opinion as to the market value of this property on April 13th or April 14, 1950, after this 3.17 acres was taken?

'Mr. Winston: I will have to object to that unless he is able to tell us its value before. That is the issue in the case.

'The Court: He gave his statement. He said $10 to $20 an acre, as I understood him. I don't know whether he took into consideration the timber that is there or not.'

The objection goes no further than to require the witness to testify to the value of the property before the proposed taking of the 3.17 acres. This he had already done. No objection was ever made to the qualifications of this witness to testify to the market value of the property in controversy. This, however, is now the burden of the defendants' argument in this court, and this court will not review evidence admitted where an objection was not first made to its admission in the trial court. Suko v. Northwestern Ice & Cold Storage Co., 166 Or. 557, 572, 113 P.2d 209; Gyllenberg v. Heriza, 127 Or. 481, 487, 272 P. 674.

The defendants also assign as error the court permitting Joe Morgan and Ray Reubel to testify to the value of the land taken, and the damage to that remaining after the taking, on the theory that neither was qualified to express an opinion upon the values of this particular land.

The roadway sought to be taken by condemnation traverses the land of the defendants which is located in what was described as 'Virgin territory' lying along the bank of the North Umpqua river abut 37 miles east of the city of Roseburg, Oregon, where the defendants had since the fall of 1946 maintained and operated a summer resort under the name of 'Thunder Mountain Lodge'. Entrance to the resort was gained over a private road connecting with an old forestry road to the north of the right of way sought to be condemned. On a comparatively level area below the old forestry road the defendants had constructed of rough timber six frame cabins (two not completed) with canvas roofs, a building for toilets and bath, a recreation hall and dining hall. These buildings were served with water from an old spring and lighted by electricity. The cabins alone were situated upon the right of way and taken by condemnation, and the proposed roadway passed between the resort property and the river.

The witness Joseph Morgan testified that he had been a real estate dealer since 1946, handling sales of rural property and timber, was acquainted with property values on the North Umpqua river, and was acquainted with the particular property in question. This would amply qualify the witness to state his opinion, leaving the weight to be given thereto to the judgment of the jurors. 18 Am.Jur. 999, Eminent Domain, § 355. On cross-examination he was asked these questions and answered as follows:

'Q. Mr. Morgan, have you ever sold any river frontage by the acre? A. Well, that depends on the location. Right particularly through here, I don't recall having sold any actual river frontage by the acre.

'Q. My question is have you sold any anywhere by the acre? A. No.

* * *

* * *

'Q. About that time, Mr. Morgan, do you happen to know of any timber sales in that area and what the timber did sell for? A. No.

'Q. Do you know of any since that time? A. Not in that particular area.'

After eliciting on cross-examination the above information from the witness, the defendants did not move against the testimony of the witness by either renewing their previous objection or moving to have it stricken. Therefore, should we consider that the answers above given would authorize a trial court to reject the testimony of the witness, this court will not consider such an objection when made for the first time on appeal. Gyllenberg v. Heriza, supra.

Ray Reubel, called as a witness for the plaintiff, testified that he was a real estate man familiar with property values on the North Umpqua river in the vicinity of the property in question. He had not, however, been upon the property in question until about a week before being called to testify. At the time of his inspection the roadway had been cut through, the tent cabins destroyed, and the trees upon the right of way removed. The witness excluded from his opinion of value the matter of the timber. His testimony was given as to the value in April, 1950, and the defendants objected as follows:

'Mr. Winston: I will object to that question on the ground this witness has not qualified himself to state what the value is at that time; he has no knowledge or familiarity with it; he is not competent to testify as an expert on value as of that day or even close to that date.'

The...